THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


LOUIS  ROEDEB 
ATTOBNEY  AT.  LAW 


TRIAL  EVIDENCE 


THE  RULES  OF  EVIDENCE 


APPLICABLE  ON  THE  TRIAL 
OF 

CIVIL    ACTIONS 


INCLUDING  BOTH  CAUSES  OF  ACTION  AND  DEFENSES 

AT  COMMON  LAW,  IN  EQUITY 

AND 

UNDER  THE  CODES  OF  PROCEDURE 

BY  AUSTIN  ABBOTT,  LL.D. 
VOL.    I 

THIRD   EDITION 

REVISED  AND  ENLARGED 

BY  JAMES  MACGREGOR  SMITH 

AND 
JOHN  KENNETH  BYARD 

OF  THE  NEW  YORK  BAR 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 
1918 


COPYRIGHT,  1900 
BY  LUCY  ABBOTT  MARTIN 


COPYRIGHT,  1918 
BY  LUCY  ABBOTT  MARTIN 


PEEFACE  TO  THIRD  EDITION 

In  the  preface  to  the  first  edition  of  this  work  Mr.  Abbott 
stated  that  he  assumed  that  the  reader  is  familiar  with  the 
general  principles  of  the  Law  of  Evidence  and  is  concerned 
with  their  proper  application  in  actual  practice,  and  that 
he  had  accordingly  sought  to  state  the  most  useful,  con- 
venient and  trustworthy  rules  as  to  the  mode  of  proof  of  each 
material  fact  in  all  the  great  classes  of  actions  and  defenses, 
and  to  illustrate  and  support  these  rules  by  a  selection  of 
authorities  drawn  from  the  decisions  and  the  works  of  the 
best  text-writers.  He  further  stated  that  if  he  had  laid 
down  these  rules  with  somewhat  more  conciseness  and 
certainty  than  is  usual  in  law  treatises,  it  was  not  because 
he  had  consciously  deferred  too  much  to  the  authority  of 
reported  cases  but  because  he  believed  that  the  main  rules 
of  proof  now  administered  by  our  courts  are  capable  of 
clear  and  precise  statement  upon  authority  which  will 
usually  be  controlling  at  nisi  prius. 

Nearly  forty  years  have  elapsed  since  this  was  written, 
during  which  tune  the  work  has  been  hi  daily  use  by  the  legal 
profession  hi  the  preparation  of  cases  for  trial  and  in  the 
actual  trial  of  issues  in  court,  and  it  seems  that  this  test 
has  proved  the  correctness  of  the  author's  belief  that  the 
main  rules  of  proof  are  capable  of  clear  and  precise  state- 
ment. 

This  long  use  and  approval  by  the  courts  in  both  the 
trial  and  appellate  branches  has  resulted  in  a  practical 
crystallization  of  the  principles  governing  the  subject  treated 
which  gives  the  text  itself  a  tone  of  authority  which  could 
not  be  claimed  for  a  newer  work.  It  has  accordingly  seemed 
that  the  preparation  of  this  new  edition  should  be  made 
rather  upon  the  basis  of  an  annotation  of  an  authoritative 
text  than  the  revision  of  a  treatise.  But  few  changes  have 
been  made  in  the  text  and  the  additional  authorities  in- 


G4S494 


IV  PREFACE  TO  THIRD  EDITION 

troduced  in  the  notes  are  those  which  tend  not  only  to  con- 
firm or  criticise  the  rules  stated,  but  to  aid  in  their  appli- 
cation. 

As  this  work  does  not  state  merely  the  rules  and  prin- 
ciples of  evidence  but  the  substantive  law  involved  in  the 
trial  of  a  particular  action,  the  field  of  examination  has, 
of  necessity,  included  practically  the  entire  field  of  judicial 
opinion  during  the  period  covered.  The  process  of  selec- 
tion of  cases  from  this  great  mass  of  material  has  been  at- 
tended with  difficulty  and,  of  necessity,  cannot  be  governed 
by  any  fixed  or  definite  rule  other  than  the  attempt  to  oc- 
cupy the  position  of  the  reader  and  select  those  cases  which 
seem  to  guide  his  course  in  the  work  in  hand.  In  spite  of 
the  most  drastic  process  of  elimination,  a  very  large  num- 
ber of  cases  have  been  cited,  and  still  it  has  been  deemed 
necessary  to  state  the  point  decided  with  sufficient  full- 
ness to  avoid  ordinarily  forcing  the  reader  to  have  recourse 
to  the  report  itself.  The  large  number  of  cases  in  the  va- 
rious jurisdictions,  with  the  incidental  difficulty  of  access 
to  many  of  the  volumes  cited,  has  seemed  to  render  such 
a  course  imperative  notwithstanding  the  resulting  expan- 
sion of  the  volume  of  the  work. 

It  is  felt  that  the  cases  which  have  been  selected  and  those 
which  are  pointed  out  in  the  opinions  referred  to,  will,  when 
further  reference  is  desired,  furnish  as  complete  a  clue  to 
the  authorities  as  can  be  brought  within  the  compass  of 
a  single  work,  absolute  completeness  of  citation  being  phys- 
ically impossible. 

The  former  omission  of  a  Table  of  Cases  Cited  has  been 
here  remedied,  and  its  use  will  furnish  another  ready  clue 
to  the  desired  authorities  upon  the  point  treated,  which 
may  prove  useful  by  way  of  cross-reference  in  view  of  the 
necessary  separation  of  analogous  cases  which  fall  in  dif- 
ferent chapters  under  the  classification  in  the  work. 

JAMES  MACGREGOR  SMITH. 
JOHN  KENNETH  BYARD. 
New  York,  October,  1918 


PREFACE  TO  SECOND  EDITION 

Abbott's  Trial  Evidence  has  long  enjoyed  the  reputation 
of  being  one  of  the  most  useful  law  books  ever  published. 
In  writing  it,  Mr.  Abbott  had  constantly  in  mind  the  needs 
of  the  trial  lawyer,  and  selected  and  arranged  his  material 
in  such  a  way  as  to  make  it  readily  available  in  the  course 
of  a  trial,  or  in  the  preparation  for  trial.  This  arrangement 
I  have  not  in  any  way  disturbed.  The  book  has  become  so 
generally  recognized  as  an  authority  that  I  have  deemed  it 
proper  to  make  my  additions  mostly  hi  the  way  of  foot 
notes,  only  altering  the  text  where  there  have  been  changes 
in  the  law.  In  a  few  cases,  where  the  modification  was 
statutory,  and  the  former  rule  still  prevails  in  some  juris- 
dictions, I  have  left  the  text  in  its  original  form,  and  called 
attention  to  the  change  by  a  note.  In  the  twenty  years 
since  the  last  edition  was  issued,  many  decisions  of  the 
greatest  importance  have  been  rendered,  and  the  cases 
reiterating  points  previously  decided  are  almost  innumer- 
able. To  have  added  all  of  these  would  have  been  impracti- 
cable, and  would  have  greatly  increased  the  size,  without 
adding  anything  to  the  value,  of  the  work.  I  have,  however, 
endeavored  to  cite  all  the  cases  in  which  new  points  have 
been  decided,  and  such  recent  cases  affirming  or  applying 
old  rules  as  will  give  the  practitioner  a  clew  to  the  latest 
authorities  on  those  subjects.  Even  under  this  system  the 
new  citations  will  be  found  to  number  several  thousands. 
In  many  cases,  in  order  to  avoid  the  citation  of  an  unnec- 
essary number  of  cases,  I  have  substituted  recent  authorities 
for  those  originally  cited. 

JOHN  J.  CRAWFORD. 

30  Broad  Street,  New  York,  March  9th,  1900. 


PREFACE  TO  FIRST  EDITION 

In  this  volume  I  assume  that  the  reader  is  familiar  with 
the  general  principles  of  the  Law  of  Evidence,  and  is  con- 
cerned with  their  proper  application  in  actual  practice.  I 
have  accordingly  sought  to  state  the  most  useful,  conven- 
ient, and  trustworthy  rules  as  to  the  mode  of  proof  of  each 
material  fact  in  all  the  great  classes  of  actions  and  defenses; 
and  to  illustrate  and  support  these  rules  by  a  selection  of 
authorities  drawn  from  the  decisions  of  all  the  American 
and  English  courts,  and  from  the  works  of  the  best  text- 
writers. 

Recent  changes  in  procedure,  accompanying  or  resulting 
from  the  Code  practice,  have  had  far-reaching  consequences 
in  respect  to  the  mode  of  dealing  with  the  subject  of  evi- 
dence. The  abolition  of  formal  distinctions  affecting  actions 
and  suits,  the  new  methods  of  pleading,  the  abrogation  of 
former  disqualifications  of  witnesses,  and  the  advance  hi 
assimilating  the  practice  in  the  United  States  courts  to  that 
hi  the  State  courts,  have  silently  effected  many  radical 
changes  in  the  mode  of  proof,  and  have  had  a  wide  and 
powerful  influence  upon  the  practical  application  of  the 
general  principles  of  evidence.  In  consequence  of  these 
modifications  of  the  law,  most  of  the  questions  as  to  com- 
petency of  witnesses  and  the  effect  of  the  pleadings,  which 
formerly  occupied  so  much  attention,  have  dropped  out  of 
notice,  and  questions  of  the  relevancy  and  competency  of 
particular  facts  relating  more  or  less  directly  to  the  issue, 
and  of  the  weight  and  cogency  of  evidence,  have  been 
brought  into  new  importance.  Since  the  law  has  given  to 
the  trial  courts  increased  freedom  in  the  admission  of  evi- 
dence, the  appellate  courts  justly  use  increased  care  in 
scrutinizing  questions  of  evidence,  that  they  may  relieve 
against  all  substantial  errors  which  transcend  the  limits  of 


Vlll  PREFACE  TO   THE    FIRST   EDITION 

that  freedom.  And  there  has  also  been  a  general  advance 
in  the  development  of  the  rules  by  which  appellate  courts 
(in  proper  cases)  re-weigh  the  evidence  on  which  facts  have 
been  found  hi  the  trial  courts. 

Hence  discussions  on  questions  of  evidence,  in  our  appel- 
late courts,  are  now  more  important  and  more  frequent 
than  ever  before;  and  careful  practitioners  are  more  than 
ever  accustomed  to  include  hi  their  preparation  for  trial,  an 
examination  of  the  authorities  as  to  the  mode  in  which,  in 
the  present  condition  of  the  law,  the  cause  of  action  or 
defense  should  be  proven. 

Each  class  of  actions  has  its  peculiar  rules  of  proof.  These 
are  the  result  of  experience,  adapting  the  general  principles 
discussed  hi  the  text-books  to  the  exigencies  of  justice  in 
each  kind  of  litigation.  It  is  not  enough  to  know  the  general 
principles  which  are  to  be  applied.  It  is  necessary  to  know 
also  how  they  are  to  be  applied  and  limited  in  the  particular 
action  on  trial.  Such  special  rules,  though  less  artificial  and 
technical  than  formerly,  have  become,  under  the  new  proce- 
dure, more  numerous  and  important  than  ever.  On  ques- 
tions of  evidence  the  conflict  apparent  among  text-writers  and 
decisions,  often  arises  from  supposing  that  general  principles 
have  similar  application  and  effect  hi  all  classes  of  cases. 
The  method  here  pursued  aims  to  give,  in  successive  chap- 
ters, under  the  title  of  each  principal  cause  of  action  and 
defense,  the  characteristic  rules  now  applied  by  our  courts 
in  that  class  of  cases,  together  with  an  indication  of  the 
general  principles  on  which  these  special  rules  rest,  and  by 
which  they  are  to  be  extended  or  limited,  hi  new  instances. 

The  method  chosen  for  the  statement  of  these  rules  is 
that  which  seemed  to  promise  the  best  practical  assistance 
to  counsel  and  to  the  court,  in  the  trial  of  issues;  to  the 
practitioner  generally  hi  preparing  for  trial  and  selecting 
witnesses;  and  also  to  the  pleader  hi  framing  issues. 

The  order  of  topics  pursued  first  disposes  of  questions 
connected  with  the  character  of  Particular  Classes  of  Parties, 
as  likely  to  arise  in  actions  of  almost  any  kind,  and  then 


PREFACE    TO    THE    FIRST  EDITION  IX 

proceeds  with  Particular  Causes  of  Action,  taking  first 
those  in  which  the  main  proof  is  usually  of  facts  raising  an 
implied  contract  or  legal  duty;  followed  by  those  involving 
writings  unsealed,  sealed,  or  of  record;  then  those  turning 
on  negligence  or  tort;  then  those  seeking  specific  relief, 
founded  on  either  of  these  kinds  of  transactions;  and  finally 
those  which,  in  a  greater  degree,  depend  on  statutes,  &c. 
Defenses  which  are  common  to  several  classes  of  actions  are 
not  treated  in  connection  with  each  cause  of  action,  but  in 
the  third  and  last  part  of  the  volume. 

The  arrangement  under  each  subject  requires  the  reader 
to  analyze  closely  his  cause  of  action  or  defense;  and  thus 
warns  him,  in  preparing  his  proofs,  not  to  overlook  any 
element  which  the  case  may  involve.  He  should  remember 
that  he  is  necessarily  assumed  to  have  already  >  decided  that 
his  action  will  lie  or  his  defense  avail,  and  that  whatever 
may  here  be  said  upon  that  point  is  subordinate  and  inci- 
dental to  the  main  object,  viz.,  to  aid  him  in  proving  or 
disproving  whatever  allegations  in  the  pleading  before  him 
may  be  material,  and  to  indicate  the  various  phases  of  the 
subject  under  which  the  evidence  adduced  may  or  may  not 
be  admissible.  The  practitioner  will  find  that  such  a"  close 
analysis  of  the  probative  facts  of  a  cause  of  action  or  de- 
fense, is  of  the  utmost  value  in  giving  him  a  mastery  of  the 
details  of  the  case;  and  the  student  will  find  it  equally 
useful  in  leading  him  to  an  understanding  of  the  law. 

If  the  rules  I  lay  down  are  stated  with  somewhat  more 
conciseness  and  certainty  than  is  usual  in  law  treatises,  it  is 
not  because  I  have  consciously  deferred  too  much  to  the 
authority  of  reported  cases,  but  because  I  believe  that  the 
main  rules  of  proof  now  administered  by  our  courts,  are 
capable  of  clear  and  precise  statement,  upon  authority 
which  will  usually  be  controlling  at  nisi  prius.  I  have 
endeavored  to  present  them  thus  in  the  text :  rules  that  are 
doubtful  or  of  secondary  value,  I  have  sought  to  indicate 
suitably  in  the  notes. 

Discussion  of  the  cases  cited,  and  their  relative  authority, 


X  PREFACE  TO   TEE    FIRST   EDITION 

has  therefore  been  omitted;  my  purpose  being  to  cite  those 
of  importance  and  value,  and  to  state  concisely  and  with 
certainty  the  resulting  rules;  and  to  cite  cases  of  minor 
authority  so  far  as  they  justly  serve  to  extend,  qualify,  or 
apply  the  doctrine  of  the  leading  authorities:  otherwise  to 
omit  them  or  refer  to  them  as  contra  to  the  rule  stated.  In 
a  work  covering  so  extended  a  field,  it  would  be  impracti- 
cable to  cite  all  the  cases  examined,  and  I  have  not  sought 
to  multiply  but  rather  to  sift  and  select  authorities. 

Upon  those  questions  on  which  the  adjudications  or 
statutes  of  different  States  are  at  variance,  I  have  stated  the 
rule  which  I  understand  to  prevail  in  New  York,  calling 
attention,  however,  to  questions  on  which  there  is  a  serious 
general  difference  of  opinion:  such,  for  instance,  as  the 
burden  of  proof  as  to  contributory  negligence,1  the  com- 
petency of  admissions  and  declarations  of  an  assignor  to 
impair  the  claim  of  his  assignee,2  the  effect  of  irregular 
indorsement,3  and  the  like.  In  cases  of  minor  importance 
it  is  generally  assumed  that  the  reader  will  notice  any  pe- 
culiar rule  prevailing  in  his  own  jurisdiction. 

Discussion  of  general  principles  has  been  out  of  place, 
except  rarely  and  in  a  limited  degree,  where  it  has  seemed 
necessary,  either  to  show  how  those  principles  are  now  ad- 
ministered in  the  American  courts  somewhat  differently  than 
indicated  in  the  books,  or  to  aid  the  reader  to  meet  vexed 
and  unsettled  questions. 

In  reviewing  the  work  on  which  I  have  been  so  long 
engaged,  and  the  preparation  for  which  has  so  constantly 
connected  itself  with  professional  practice,  I  am  not  uncon- 
scious of  imperfections  and  inequalities  in  its  execution;  but 
to  the  kindly  consideration  of  the  profession  I  submit  it,  in 
the  hope  that  it  may  often  aid  and  seldom  mislead. 

AUSTIN  ABBOTT. 
Times  Building,  New  York,  May,  1880. 

1  Pages  1569-1578.          -  Pages  46-54.  3  Pages  1114-1121. 


TABLE  OF  CONTENTS 


PART  I 

EVIDENCE  AFFECTING  PARTICULAR  CLASSES  OF 

PARTIES 


CHAPTER  I 


ACTIONS  BY  AND  AGAINST  ASSIGNEES 


PAGE 

1.  Rules   applicable   to   as- 

signees    1 

2.  Allegation  of  assignment 

material 2 

3.  Requisite   proof   of   as- 

signment    7 

4.  Implied  assignment 10 

5.  Statute  of  frauds 11 

6.  Presumptive  evidence ...  12 

7.  Consideration 14 

8.  Gift 19 

9.  Object,  when  material ...  24 

10.  Best  and  secondary  evi- 

dence    26 

11.  Proof  of  execution 27 

12.  Deliver  and  acceptance. .  27 

13.  Assignment  with  sched- 

ules   28 

14.  Assignment  by  corpora- 

tion    29 

15.  Authority    of    officer    or, 

agent 30 

16.  Parol  evidence  to  vary .  .  32 

17.  Equities  in  favor  of  as- 

signor or  third  person .  34 

18.  Bonafide  purchaser 36 

19.  Notice  to  debtor 36 

20.  Assignment  for  purposes 

of  suit . .  39 


PAGE 

39 
40 
41 

43 

43 

45 


21.  — or  as  collateral  security 

22.  Assignees  in  insolvency. . 

23.  Assignees  in  bankruptcy . 

24.  Purchaser    from    official 

assignee 

25.  Assignees  for  benefit  of 

creditors 

26.  Testimony  of  assignor. .  . 

27.  Assignor's       declarations 

not  competent  in  favor 

of  assignee 46 

28.  Their  competency  against 

assignee 47 

29.  —  if  made  before  assignor 

was  owner 47 

30.  —  if  made  after  he  ceased 

to  be  owner 48 

31.  — if  made  during  his  own- 

ership    50 

3 la.  When  declarations  are 

part  of  the  res  gestce. . .  54 
j32.  Preliminary  question. ...  55 

33.  Distinction  between  dec- 

larations and  transac- 
tions         56 

34.  Declarations  admitted  in 

case  of  conspiracy ....       5€ 

35.  Receipt  of  the  assignor .  .       58 

36.  Notice  to  produce 59 


Xll  TABLE    OF    CONTENTS 

CHAPTER  II 
ACTIONS  BY  AND  AGAINST  ASSOCIATIONS 

PAGE  PAGE 

1.  Voluntary  associations.  .        60       2.  Joint  stock  companies. ..        69 


CHAPTER  III 
ACTIONS  BY  AND  AGAINST  CORPORATIONS 


I.  PROVING  CORPORATE  EXISTENCE 

1.  Pleading 74 

2.  Strict  proof  not  usually 

required 77 

3.  Exceptional  cases 79 

4.  Incorporation  incidental- 

ly in  issue 80 

5.  Legislative  sanction  nec- 

essary         80 

6.  Domestic     corporation — 

general    law   or    char- 
ter        83 

7.  Evidence  of  authenticity 

of  statute 84 

8.  National  Bank 86 

9.  Corporation      of      sister 

State 86 

10.  Corporation     of    foreign 

State 89 

II.  Mode  of  proving  de  facto 

existence 89 

12.  Acceptance  of  charter... .       92 

13.  Organization  under  gen- 

eral law 93 

14.  Official  permission  to  do 

corporate  business.  ...       96 

15.  Disregard  of  statute  con- 

ditions         97 

16.  Effect  of  proof  of  user. .  .       97 

17.  Mode  of  proving  user.  .  .       98 

18.  Admission  of  incorpora- 

tion        99 

19.  Estoppel  against  the  com- 

pany      101 


20.  Estoppel    against    those 

dealing  with  the  com- 
pany    103 

21.  Estoppel    against    mem- 

bers and  subscribers. . .     106 

22.  The  estoppel  liberally  ap- 

plied       108 

23.  General   principle   as   to 

proof  of  incorporation .     109 

24.  Materiality  of  date 110 

25.  Misnomer 110 

26.  Fraud,  forfeiture  or  non- 

user Ill 

II.  CORPORATE  POWERS  IN  GENERAL 

27.  New  powers 112 

28.  Distinction  between  orig- 

inal powers  of  corpora- 
tion and  delegated  pow- 
ers of  officers 112 

29.  Evidence  of  delegation  of 

power 114 

30.  General  presumptions  as 

to  corporate  acts 116 

III.  CONTRACTS  BY  A  CORPORATION 

31.  Implied  promises 120 

32.  Simple  contracts  in  writ- 

ing      121 

33.  Sealed  instruments 122 

34.  Corporate  acceptance  of 

deeds,  &c 126 

35.  Contract    ambiguous    as 

to  party 126 


TABLE    OF    CONTENTS 


Xlll 


CHAPTER  III. — ACTIONS  BY  AND  AGAINST  CORPORATIONS — continued 


PAGE 
IV.   TORTS     BY     A     CORPORATION 

36.  False  representations  by 

meeting 127 

37.  Frauds  by  directors 128 

38.  Liability  for  wrongs   by 

officers  or  agents 130 

V.  MEETINGS  AND  BY-LAWS 

39.  Evidence  of  regularity  of 

meetings 131 

40.  Acts  by  parol 132 

41.  Pleading  by-laws,  &c. .  .  .  133 

42.  Proof  of  by-laws 134 

VI.  AUTHORITY     OF     OFFICERS, 

AGENTS   AND    MEMBERS 

43.  Evidence  of  appointment 

and  agents 135 

44.  Evidence  of  express  au- 

thority       136 

45.  Implied  scope  of  authority    137 

46.  Authority  implied  in  title 

of  office 139 

47.  Testimony   of   officer   or 

agent 142 

48.  Ratification 143 

VII.  ADMISSIONS,    DECLARATIONS 

AND   NOTICE 

49.  Admissions  and  declara- 

tions of  members 144 

50.  Admissions  and  declara- 

tions  of  officers,   &c., 
authorized  to  speak . . .     144 


PAGE 

51.  Admissions  and  declara- 

tions made  as  part  of 

res  gestoe 146 

52.  Admissions  and  declara- 

tions before  incorpora- 
tion     147 

53.  Notice 148 

VIII.    BOOKS  AND   PAPERS 

54.  Corporation    books    and 

papers  as  evidence. . . .  149 

55.  Statutory  record 150 

56.  Minutes  of  proceedings. .  151 

57.  Against  whom   evidence 

of    corporate    acts    is 
competent 153 

58.  The  minutes  not  exclu- 

sively the  best  evidence    155 

59.  Authentication    of     cor- 

porate    books     when 

produced 157 

60.  Rough  minutes 158 

61.  Competency  of  copies ...  159 

62.  Reports 160 

63.  Foundation  of  secondary 

evidence 160 

64.  Notice  to  produce 161 

65.  Parol   evidence   to   vary 

corporate  minutes ....     161 

66.  Accounts    and    business 

entries .  .  163 


XIV 


TABLE    OF   CONTENTS 


CHAPTER  IV 

ACTIONS  BY  AND  AGAINST  EXECUTORS  AND 
ADMINISTRATORS 


PAGE 

1.  Nature  of  official  charac- 

ter and  title 165 

2.  Necessity  of  proof  of  title 

under  .pleadings 169 

3.  Appropriate      mode      of 

proof 171 

4.  Effect  of  letters  as  evi- 

,          dence 173 

5.  Impeaching  the  letters. . .     175 

6.  Best  and  secondary  evi- 

dence of  authority ....     177 

7.  Representatives'  declara- 

tions and  admissions 
competent  against  the 
estate 178 

8.  The   decedent's   declara- 

tions and  admissions .  .     180 

9.  Judgments 181 

10.  Testimony  of  the  repre- 

sentative       181 

11.  Testimony  of  interested 

persons  against  the  es- 
tate   182 

12.  The  New  York  rule 185 

13.  What    parties    are    ex- 

cluded. .  186 


PAGE 

14.  What  interested  witnes- 

ses are  excluded 187 

15.  Assignor,  or  source  of  title 

excluded 197 

16.  What    persons    are    pro- 

tected       198 

17.  Insanity 200 

18.  Objecting    to    the    testi- 

mony       201 

19.  Preliminary    question   of 

competency 202 

20.  Moving  to  strike  out  in- 

competent part  of  testi- 
mony       202 

21.  Proof  of  an  interview. . . .     203 

22.  What  is  a  personal  trans- 

action or  communica- 
tion       204 

23.  Indirect  evidence 208 

24.  Effect  of  objecting  party 

testifying   in   his   own 
behalf 210 

25.  Form   of   offer  of  testi- 

mony in  rebuttal 212 

26.  The  United  States  courts 

rule.  .  212 


CHAPTER  V 


I.  DEATH 

1.  Direct  testimony 216 

2.  Registry  of  death  or  bu- 

rial      218 

3.  Presumptions    of   death, 

and  of  the  time  of  death    218 


4.  Circumstances  raising  a 

natural  presumption  of 
death 220 

5.  Voyages  and  other  spe- 

cial perils 222 


TABLE    OF   CONTENTS 


XV 


CHAP.  V. — ACTIONS  BY  AND  AGAINST 

PAGE 

6.  Seven  years'  absence  in 

case  of  life-estates ....     223 

7.  Seven  years'  rule  in  other 

cases 224 

8.  Absence  and  inquiry ....     225 

9.  Rebutting  the  presump- 

tion   231 

10.  Time  of  presumed  death.  233 

11.  The  English  rule 234 

12.  The  American  rule 235 

13.  Survivorship  in  common 

casualty 238 

13a.  Presumption  as  to  de- 
scendants       239 

II.  MARRIAGE 

14.  Burden  of  proof  and  pre- 

sumptions       242 

15.  Direct  evidence  of  mar- 

riage       244 

16.  Certificate  or  registry .  .  .     250 

17.  Indirect  evidence  of  mar- 

riage       251 

18.  Cohabitation  and  repute.    252 

19.  Cohabitation  and  decla- 

rations       255 

20.  Marriage   after   meretri- 

cious intercourse 256 

21.  Second   marriage  during 

absence 258 

22.  Rebutting    evidence    of 

marriage 263 

23.  Foreign  law 266 

III.  ISSUE  AND  FAILURE  OF  ISSUE 

24.  Burden  of  proof 266 

25.  Presumption  as  to  failure 

of  issue 268 

26.  Escheat 269 

27.  Possibility    of    issue  ex- 

tinct. .  269 


HEIRS  AND  NEXT  OF  KIN,  &C. — COnt'd 

PAGE 

28.  Registry  of  birth  or  bap- 

tism       270 

29.  Consorting  as  a  family.  .     271 

30.  Direct   testimony   as  to 

age 271 

31.  Physician's  testimony  or 

account 272 

32.  Legitimacy;    Burden    of 

proof  and  presumptions    273 

33.  Parents'    testimony   and 

declarations 279 

IV.  HEARSAY    AS    TO    FACTS    OF 

FAMILY    HISTORY    (PEDIGREE) 

34.  Grounds  of  receiving  it; 

and  its  weight 282 

35.  What    facts    are    within 

the  rule 284 

36.  Whose  declarations  may 

be  proved 286 

37.  Family  records 291 

38.  Other    written    declara- 

tions      293 

39.  General  family  repute . . .     295 

40.  Declarations  in  view  of 

controversy 297 

41.  Repute  beyond  the  fam- 

ily; Acquaintance; 
Newspaper  notice;  In- 
surance    299 

42.  Best  and  secondary  evi- 

dence      300 

V.  REGISTRY  OF  FACTS  OF  FAMILY 

HISTORY  (PEDIGREE) 

43.  Registries  authorized  by 

law 301 

44.  Registries     not    author- 

ized by  law 304 

45.  Best  and  secondary  evi- 

dence       306 

46.  Impeaching  registrias .  .  .     307 


XVI 


TABLE    OF   CONTENTS 


CHAP.  V. — ACTIONS  BY  AND  AGAINST  HEIRS  AND  NEXT  OP  KIN,  &c. — cont'd 


PAGE 

VI.  JUCIDIAL  RECORDS,  SHOWING 
FACTS  OF  FAMILY  HISTORY 
(PEDIGREE) 

47.  Letters  of  administration, 

&c 307 

48.  Judgments  and  verdicts .     309 

VII.  IDENTITY 

49.  Necessity  of  proof 310 ' 

50.  Mode  of  proof 312 

VIII.  NATIONAL  CHARACTER;  AND 

DOMICILE 

51.  Citizenship  and  alienage .     313 

52.  Naturalization 316 

53.  Nature  of  the  question  of 

domicile 318 

54.  Presumptions;    and   ma- 

terial facts  as  to  dom- 
icile      319 

55.  Change  of  domicile 324 

56.  The  intent 331 

57.  Evidence    of    residence, 

and  of  intent 333 

IX.  WILLS 

58.  Presumptions,   and   bur- 

den of  proof  as  to  in- 
testacy      340 

59.  Domestic  will  proved  by 

producing  probate ....     340 

60.  Decree  of  probate  court, 

how  far  conclusive ....  342 

61.  Formalities  of  execution.  344 

62.  Testamentary  capacity. .  351 

63.  Conduct  and  declarations 

of  testator 355 

64.  Opinions    as    to    mental 

soundness 361 

65.  Hereditary   insanity 366 

66.  Inquisitions,    and    other 

adjudications 367 


PAGE 

67.  Undue       influence; — the 

burden  of  proof 368 

67a.  Competency     of     wit- 
nesses    373 

68.  Indirect  evidence 374 

69.  Relevant  facts 376 

70.  Declarations     and     con- 

duct of  testator 378 

71.  Fraud 380 

72.  Revocation 381 

73.  Marring  the  document .  .  382 

74.  Disappearance  of  the  doc- 

ument    384 

75.  Testator's  declarations.  .  386 

76.  Subsequent        testamen- 

tary acts 388 

77.  Constructive  revocations  389 

78.  Action  to  establish  lost  or 

destroyed  will 390 

79.  Foreign  will 393 

80.  Ancient  will 394 

X.  EXTRINSIC    EVIDENCE    AS  TO 
WILLS 

81.  Effect  of  the  Statute  of 

Wills 395 

82.  Legitimate  objects  of  ex- 

trinsic evidence 396 

83.  Reasons  for  its  liberal  ad- 

mission    400 

84.  Reasons  for  its  strict  ex- 

clusion    400 

85.  Exceptional    rule    as    to 

evidence  in  rebuttal. .  .  402 

86.  Extrinsic  aid  in  reading .  .  402 

87.  Alteration 406 

88.  Mistakes 408 

89.  Extrinsic  aid  in  testing 

validity 409 

90.  Rebutting  evidence 410 

91.  Extrinsic  aid  in  applying 

*  411-434 


TABLE    OF    CONTENTS 


XV11 


CHAP.  V. — ACTIONS  BY  AND  AGAINST  HEIRS  AND  NEXT  OF  KIN,  &c. — conVd 


PAGE 

106.  Nature  of  estate  given.     435 

107.  Raising  a  trust 436 

108-115.  Extrinsic  aid  in  ex- 
ecuting  436-443 

116.  Time  of  declarations 

bearing  on  intention  .  .     443 

XI.  ADVANCEMENTS 

117.  The  general  presumption    444 

118.  Advancement  by  deed  of 

real  property 448 

119.  Purchase    in    name    of 

child 449 

120.  Other  transfers ........  450 

121.  Entries  in  account 451 

122.  Declarations     and     ad- 

missions      452 

123.  Value 454 

124.  Testamentary  clauses  as 

to  advancements .  .  455 


PAGE 

XII.  TITLE,   DECLARATIONS,  AND 

JUDGMENTS 

125.  Ancestor's  title,  and  suc- 

cessor's election 456 

126.  Declarations    and     ad- 

missions of  the  ances- 
tor as  to  title,  &c 457 

127.  Declarations     of    third 

persons 462 

128.  Declarations  of  succes- 

sors,      representatives 
and  beneficiaries 463 

129.  Judgments 464 

XIII.  ACTION  TO    CHARGE  HEIR, 

NEXT   OF   KIN,   &C.,    WITH    AN- 
CESTOR'S DEBT 

130.  Material  facts 467 

131.  Mode  of  proof 469 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE 


I.  GENERAL  PRINCIPLES 

1.  Marriage 471 

2.  Foreign  Law 472 

3.  Competency  of  husband 

or  wife  as  witness 473 

4.  Their     admissions     and 

declarations 477 

5.  Agency  of  one   for   the 

other 482 

6.  Estoppel 484 

7.  Judgments 486 

8.  Evidence    of    husband's 

title 487 

9.  Evidence  of  wife's  title .  .     490 

10.  Evidence  of  transfer  by 

one  to  the  other 498 

11.  Tacit  transfers.  .  500 


12.  —the  old  rule 501 

13.  —  the  new  rule 502 

14.  Evidence  of  his  applica- 

tion of  her  funds 502 

15.  Evidence  of  her  convey- 

ance       503 

16.  Impeaching  her  convey- 
ance      503 

17.  Evidence  of  wife's  sepa- 
rate business 505 

II.  ACTIONS  BY  OR  AGAINST 

HUSBAND 

18.  Action  by  him  founded 

on  marital  right 506 

19.  Defenses 507 


xvin 


TABLE    OF    CONTENTS 


CHAPTER  VI. — ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE — continued 


PAGE 

20.  Action       against       him 

founded  on  marital  ob- 
ligation    508 

21.  Actions      against      him 

founded  on  her  agency  508 

22.  Defenses 510 

23.  Action  for  necessaries .  .  .  510 

24.  Defenses 513 

25.  Causes  of  separation ....  513 

III.    ACTIONS   BY    A   MARRIED 
WOMAN 

26.  Her  pleading  in  her  action 

on  contract 515 

27.  Evidence    of    the    con- 

tract           516 

28.  Her  action  for  tort . .  516 


PAGE 

IV.  ACTIONS  AGAINST  HER 

29.  Pleading  in  action  against 

her  on  contract 519 

30.  Evidence  of  the  contract.    520 

31.  The  making  of  the  con- 

tract      520 

32.  The  English  rule  as  to 

charging  the  separate 
estate 521 

33.  The  American  rule 522 

34.  —  direct  benefit  to  sepa- 

rate estate 523 

35.  Action    against    her   for 

necessaries 525 

36.  —  for  fraud 526 

37.  Husband's    coercion    of 

wife .  .  527 


ACTIONS  AFFECTING  PARTIES  IN  A  JOINT   OR  COMMON 
INTEREST  OR  LIABILITY 


1.  The  general  principle. .  . .     529        6. 

2.  Joint  debtors 531 

3.  Defendants  absent  or  de-  7. 

faulted 532        8. 

4.  Admissions,  &c.,  of  per-  9. 

sons  not  parties 533 

5.  Admissions,  &c,,  of  par-  10. 

ties    having    common 
interest  or  liability. .  .  .     534 


-  joint  interest  or  lia- 
bility      535 

—  joint  promisees 540 

Notice 540 

Declarations  of  conspira- 
tors or  confederates . . .     540 
Preliminary  question  as 
to  connection .  .  542 


CHAPTER  VIII 


ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS 


I.  GENERAL  PRINCIPLES 

1.  Different  proof  of   title, 

in  different  cases 546 

2.  Legal  title 548 


3.  Contracts  in  official  ca- 

pacity       550 

4.  Acts  by  part  of  board  or 

body 552 


TABLE    OF   CONTENTS 


XIX 


CHAPTER  VIII. — ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. — cont'd 


PAGE 

5.  Demand  and  notice 552 

6.  Former  judgments 553 

II.  ACTIONS  BY  OFFICERS 

7.  Pleading  by  officer  suing 

as  such 553 

8.  Proof  of  title 554 

9.  Process  as  supporting  a 

cause  of  action 555 

10.  Return    adduced   in   his 

own  favor 555 

11.  Action  for  emoluments.  .  556 

III.   ACTIONS  AGAINST  OFFICERS 

12.  Plaintiff's  pleading 556 


PAGE 

13.  Plaintiff's  proof  of  official 

character  of  defendant 

or  his  deputy 557 

14.  Cause  of  action 558 

15.  Return,    as    against   the 

officer 561 

16.  Public  action  for  refusal 

to  serve 564 

17.  Pleading   by   officer  de- 

fendant       564 

18.  Defendant's  proof  of  of- 

ficial character  hi  justi- 
fication      564 

19.  Process  as  a  protection  to 

defendant. . .  565 


CHAPTER  IX 
ACTIONS  BY,  AGAINST,  OR  BETWEEN  PARTNERS 


I.   ACTIONS  BY  PARTNERS 

1.  Allegation  of  partnership  569 

2.  Proof  of  partnership ....  569 

3.  Parol   evidence   to   vary 

the  contract  sued  on ...  572 

4.  Firm  books  as  evidence  hi 

favor  of  the  firm 573 

5.  Declarations 573 

6.  Defendant's  evidence ....  573 

7.  Matter  hi  abatement ....  574 

II.   ACTIONS     AGAINST      PARTNERS 

8.  Allegation  of  partnership.  575 

9.  Proof  of  partnership ....  576 

10.  Best  and  secondary  evi- 

dence    577 

11.  Indirect  evidence  of  part- 

nership    578 

12.  Holding  out  to  the  pub- 

lic   579 

13.  Representations   to   par- 

ticular creditor .  .  580 


14.  Admissions  and  declara- 

tions to  prove  partner- 
ship       581 

15.  Hearsay 584 

16.  Ownership 585 

17.  Dormant  and  secret  part- 

ners       585 

18.  Community    of    profits; 

the  common-law  rule. .     586 

19.  —  the  English  rule 589 

20.  Evidence,   hi  respect  to 

date 589 

21.  Assumption  of  debts  by 

incoming  partner 590 

22.  Variance  as  to  the  num- 

ber of  partners 591 

23.  Presumption  of  partner's 

authority 592 

24.  Evidence  as  to  the  scope 

of  the  business,  &c. .  .  .     593 

25.  Evidence  of  express  au- 

thority      593 


XX 


TABLE    OF   CONTENTS 


CHAPTER  IX. — ACTIONS  BY,  AGAINST,  OR  BETWEEN  PARTNERS — continued 


PAGE 

26.  Question  to  whom  credit 

was  given 594 

27.  Parol  evidence  to  charge 

firm  on  invididual  sig- 
nature       596 

28.  —on  deed 596 

29.  Evidence      of     ratifica- 

tion       598 

30.  Evidence    of    deceit    or 

fraud 599 

31.  Evidence  of  other  torts. .     600 

32.  Admissions  and  declara- 

tions of  a  partner 601 

33.  Acts,     admissions,     &c., 

after  dissolution 603 

34.  Notice 604 

35.  Defendant's  evidence  to 

disprove  partnership .  .     605 

36.  Proof  of  a  limited  partner- 

ship       606 

37.  Matter  in  abatement ....     607 

38.  Evidence  of  known  want 

of  authority 608 

39.  Transactions  in  the  in- 

terest   of    one     part- 
ner      609 

40.  Burden  of  proving  dis- 

solution and  notice. . .       610 


PAGE 

41.  Mode  of  proving  dissolu- 

tion      611 

42.  —notice 612 

III.  RULES  PECULIAR  TO  SURVIVING 
PARTNERS 

43.  Actions  by  survivor 615 

44.  Actions  against  survivor .     617 

45.  Actions  against  represen- 

tatives    of     deceased 
partner 618 

IV.  ACTIONS  BETWEEN  PARTNERS 

46.  Allegation  and  burden  of 

proof  of  partnership . . .  619 

47.  Proof  of  partnership ....  619 

48.  Order  of  proof 622 

49.  Evidence  of  firm  and  ni- 

di vidual  transactions. .     623 

50.  Title  to  real  property. ...     625 

51.  Evidence  to  charge  mem- 

ber with  assets 627 

52.  Evidence  to  credit  mem- 

ber with   payment  of 
share 627 

53.  Partnership  books,  &c.,  as 

evidence 627 

54.  Evidence    of    voluntary 

settlement. .  629 


CHAPTER  X 
ACTIONS  BY  AND  AGAINST  RECEIVERS 


1.  Allegation     of     appoint- 

ment, and  right  of  ac- 
tion      630 

2.  Evidence  of  appointment    632 


3.  Leave  to  sue . 632 

4.  Evidence  of  transactions 

of  defendant 634 

5.  Action  against  receiver .  .  634 


TABLE    OF   CONTENTS 

CHAPTER  XI 


xxi 


ACTIONS  BY  AND  AGAINST  TRUSTEES 


PAGE 

1.  Express  trusts 636 

2.  Demand  before  suit,  and 

notice 642 

3.  Trustees'  receipts 642 

4.  Compromises 643 

5.  Justification  of   dealings 

with  the  estate . .  644 


PAGE 


6.  Admissions  and  declara- 

tions of  the  cestui  que 
trust 645 

7.  —  of  the  trustee 646 

8.  Judgments 647 

9.  Presumption  of  convey- 

ance by  trustee 647 

10.  Constructive  and  result- 
ing trusts 648 


PART  II 

EVIDENCE  AFFECTING  PARTICULAR  CAUSES 
OF  ACTION 


CHAPTER  XII 


ACTIONS   FOR   MONEY   LENT 


1.  Grounds  of  action 653 

2.  Delivery  of  money  not 

enough 654 

3.  Direct  testimony  to  loan  656 

4.  Delivery  to  third  person .  656 

5.  To  which  of  several  was 

credit  given 657 

6.  Request 658 

7.  Authority  of  agent 659 

8.  Parties  to  joint  adventure  661 

9.  Joint  debtors 662 

10.  Written  evidence 662 

11.  Due  bill 664 

12.  Defendant's  check  in  fa- 

vor of  plaintiff 664 


13.  Defendant's  check  drawn 

on  plaintiff 665 

14.  Defendant's  receipt 666 

15.  Plaintiff's  check 666 

16.  Plaintiff's  account  books.  668 

17.  Character  in  which  the 

parties  dealt 669 

18.  Connected  and  collateral 

agreements 669 

19.  Mortgage 670 

20.  Medium  of  repayment .  .  671 

21.  Defenses — Disproof    of 

loan 671 

22.  —  Illegally 674 


XX 11  TABLE   OF   CONTENTS 

CHAPTER  XIII 
MONEY  PAID  TO  DEFENDANT'S  USE 


PAGE 

1 .  Grounds  of  action 675 

2.  Previous  request  or  pre- 

vious promise  to  reim- 
burse       679 

3.  Parol  evidence  to  vary  a 

writing. , 681 

4.  Subsequent  promise  to  re- 

imburse      682 

5.  Agent's    action    against 

principal 684 

6.  Obligation    to  pay  what 

defendant  ought  rather 

to  have  paid 687 

7.  Surety's    action    against 

.principal  or  co-surety. .     689 

8.  Implied  promise  to  indem- 

nify       694 

9.  Action  between  parties  to 

negotiable  paper 696 

10.  Proof  of  payment 698 


PAGE 

11.  —  by  oral  evidence 699 

12.  Proof  by  producing  de- 

fendant's order  in  favor 

of  third  person 700 

13.  —  by  plaintiff's  checks  or 

accounts 701 

14.  —  by  the  payee's  receipt, 

or  surrender  of  evidence 

of  debt 701 

15.  Judgment  against  plain- 

tiff in  action  of  which 

defendant  had  notice. .  704 

16.  Medium  of  payment.  . . .  707 

17.  Amount 709 

18.  Source  of  the  fund  paid. .  709 

19.  Object  and  application  of 

the  payment 710 

20.  Demand  and  notice 711 

21.  Defenses 713 


CHAPTER  XIV 


ACTIONS  TO  RECOVER  BACK  MONEY  PAID  BY  PLAINTIFF 
TO  DEFENDANT  UNDER  MISTAKE,  DURESS,  EXAC- 
TION OR  FRAUD,  OR  THE  CONSIDERATION  FOR  WHICH 
HAS  FAILED 


1.  The  payment 716 

2.  Mistake 717 

3.  Subsequent  promise  to  re- 

pay   721 


4.  Forged     or     counterfeit 

paper 721 

5.  Duress  or  exaction 723 

6.  Fraud 727 

7.  Failure  of  consideration. .  729 


TABLE    OF   CONTENTS 

CHAPTER  XV 


xxin 


ACTIONS    FOR    MONEY    RECEIVED    BY    DEFENDANT    TO 
PLAINTIFF'S  USE 


PAGE 

1.  Grounds  of  action 730 

2.  The  pleadings 731 

3.  Plaintiff 's  title  to  the  fund  735 

4.  Receipt  of  the  money  by 

defendant ' 737 

5.  —  by  an  agent  of  de- 

fendant   740 

6.  The  medium  and  amount 

of  payment 742 


PAGE 

7.  Action      by      depositor 

against  bank 744 

8.  Bank's  action   for  over- 

draft   748 

9.  Action       by       principal 

against  his  agent 749 

10.  Demand  and  notice 751 

11.  Defendant's  evidence 752 


CHAPTER  XVI 


ACTIONS  ARISING  ON  SALES  OF  PERSONAL  PROPERTY 


I.  ACTIONS    FOR   THE    PRICE    OF 

GOODS,  &c. 

1.  Grounds  of  actions 757 

2.  Plaintiff's  title 760 

3.  License  to  sell 762 

4.  Ordinary     sale    by    de- 

livery      762 

5.  Evidence  of  express  agree- 

ment       762 

6.  —  made  by  letter  or  tel- 

egram       766 

7.  Memorandum  under  stat- 

ute of  frauds 773 

8.  Explaining     writing     by 

parol 776 

9.  Proof  of  usage 781 

10.  Plaintiff    real    party    in 

interest 785 

II.  Purchase  by  defendant's 

agent 787 

12.  Defendant       undisclosed 

principal 791 

13.  —  liable,  though  acting  as 

agent 793 


14.  Assumption  of  third  per- 

son's order  ...........  794 

15.  Question  to  whom  credit 

was  given  ............  795 

16.  Identifying     the     thing 

agreed  for  ...........  797 

17.  Quality  and  description.  ..  797 

18.  Quantity  ..............  799 

19-23.  Price  and  value..  .  .801-814 

24.  Time  for  performance  or 

payment  ............  815 

25.  Conditions  and  warran- 

ties .................  818 

26.  Options  ...............  819 

27.  Subsequent  modifications  820' 
28-30.  Delivery,    tender    or 

offer  ..............  820-824 

31.  Packing  and  freight  .....  826 

32.  The  passing  of  the  title.  .  826 

33.  Delivery  to  satisfy  stat- 

ute .................  829 

Part  payment  ......  ____  832 

.  Documents,      memo- 
randa and  accounts  832-848 


34. 


XXIV 


TABLE    OF   CONTENTS 


CHAP.  XVI. — ACTIONS  ARISING  ON  SALES  OF  PERSONAL  PROPERTY — cont'd 


PAGE 

42.  Admissions  and  promises 

to  pay 849 

43.  Auction  sales 850 

44.  Sales  by  broker 852 

45-47.  Demand,        interest, 

non-payment 855-857 

II.  DEFENDANT'S  CASE 

48.  Denial  of  contract 858 

49.  Set-off  against  plaintiff's 

agent 859 

50.  Denial  of  agency  binding 

defendant 860 

51.  Plaintiff  an  agent  for  de- 

fendant   860 

52.  Defendant  not  the  buyer, 

but  agent  for  another.  861 

53.  By  bidding  at  auction.  . .  862 

54.  Rescission 862 

55.  Recoupment 864 

56.  Defects  in  title,  quantity 

or  quality 864 

57.  Deceit 865 

58.  Inconsistent  remedies .  .  .  865 

59.  Wager  contract 866 

III.  ACTIONS   AGAINST   BUYER  FOR 

NOT  ACCEPTING 

60.  General  principles ..'....  866 

61.  Readiness  to  perform. ...  867 

IV.  ACTIONS  AGAINST  SELLER  FOR 

NON-DELIVERY 

62.  General  principles 868 

63.  Orders  and  acceptance  . .  868 

64.  Readiness  to  perform. . . .  869 

65.  Object  of  buying 870 

66.  Defendant's  case — Only  an 

agent 870 


PAGE 

67.  Intermediate  destruction 

of  the  thing  sold 871 

V.  ACTIONS  AND  DEFENSES  ARISING 

OX    WARRANTY 

68.  Grounds    of    action    for 

breach  of  warranty.  .  .     871 

69.  Pleading 872 

70.  Warranties  of  things  in 

action 873 

71.  Warranty  of  title 873 

72.  Express  warranty 874 

73.  Agent's  authority  to  war- 

rant       876 

74.  Implied  warranty  on  ex- 

ecuted sale 877 

75.  —  executory  sale 880 

76.  Sale  by  sample 881 

77.  Presumption    of    knowl- 

edge       883 

78.  Parol  warranty  on  writ- 

ten sale 883 

79.  Parol  evidence  to  explain    885 

80.  Variances     in     contract 

and  breach 885 

81.  Breach 886 

82.  Opinions  of  witnesses .  .  .  888 

83.  Admissions  and  declara- 

tions      889 

84.  Omission   to   return   the 

article 890 

85.  Damages 891 

86.  Disproof  of  implied  war- 

ranty   ; 892 

87.  Buyer's  knowledge  of  de- 

fect      892 

88.  Seller's  good  faith 893 

89.  Former  adjudication.  .  . .     893 


TABLE    OF   CONTENTS 


XXV 


CHAPTER  XVII 
ACTIONS  FOR  USE  AND  OCCUPATION  OF  REAL  PROPERTY 


PAGE 

1.  Grounds  of  the  action. . .     894 

2.  The  relation  of  landlord 

and  tenant 894 

3.  Express  contract 897 

4.  Parties.  .  899 


PAGE 

5.  Defendant's  occupation. .     900 

6.  Measure  of  recovery ....     902 

7.  Admissions  and  declara- 

tions . .  903 


CHAPTER  XVIII 

ACTIONS  FOR  THE  HIRE  OF  PERSONAL  PROPERTY 
1.  Agreement  to  pay 907        2.  Measure  of  recovery ....     908 


CHAPTER  XIX 


ACTIONS  ARISING  ON   CONTRACTS  FOR  SERVICES 


I.  ACTIONS  FOR  COMPENSATION  BY 

THE   PERSON   EMPLOYED 

1.  Grounds  of  action 911 

2.  License 912 

3.  Implied  contract 912 

4.  Presumption  that  service 

was  gratuitous 914 

5.  Admissions  and  promises    917 

6.  Question   who   was   em- 

ployer      917 

7.  Declarations  of  employ- 

ees       919 

8.  Express    contract    when 

admissible  under  gen- 
eral allegation 920 

9.  Express  contract  if  sub- 

sisting must  be  put  in 

evidence 921 

10.  What  are  contracts  with- 
in the  rule 922 

II.  Extra  work 923 

12.  Variances 924 

13.  Requisite    memorandum 

under  statute  of  frauds.     924 


14.  Oral    evidence    to    vary 

writing 928 

15.  Kind  of  service 930 

16.  Measurements 931 

17.  Term  of  service,  holidays, 

day's  work,  &c 932 

18.  Rate  of  compensation. . .  933 

19.  Fixed  price,  or  quantum 

meruit 935 

20.  Value  of  service 939 

21.  Bill    rendered,     not     a 
limit 939 

22.  Opinions  of  witnesses .  .  .  940 

23.  Modification  of  contract.  942 

24.  Performance 944 

25.  Certificates 948 

26.  Excuse 952 

27.  Shop  books  and  other  ac- 

counts of  a  party  offer- 
ed in  his  own  favor .  .  .  952 

28.  Defenses — What  admissi- 

ble under  denial 954 

29.  Disproof  of  employment.  957 

30.  Payment 958 


XXVI 


TABLE    OF   CONTENTS 


CHAPTER  XIX. — ACTIONS  ARISING  ON  CONTRACTS  FOR  SERVICES — cont'd 


PAGE 

31.  Former  adjudication.  . . .     958 

32.  Limitations 958 

II.  RULES  PECULIARLY  APPLICABLE 
TO  PARTICULAR  KINDS  OF  SERV- 
ICE 

33.  Advertising 959 

34.  Artists,    architects,    au- 

thors       961 

35.  Attorney  and  counsel . . .     962 

36.  Board  and  lodging 967 


PAGE 

37.  Brokers 968 

38.  Officers  and  promoters  of 

corporations 970 

39.  Parent  and  child 973 

40.  Physicians,  &c 974 

41.  Reward 975 

III.  ACTIONS  FOR  WRONGFUL  DIS- 
MISSAL OR  REFUSAL  TO  RECEIVE 

42.  Dismissal  or  refusal,  &c.      977 

43.  Defenses .  .  979 


CHAPTER  XX 

ACTIONS  ON  VARIOUS  EXPRESS  PROMISES  TO  PAY  MONEY 


1.  General  principles 981 

2.  Promise  to  pay  purchase- 

money  981 

3.  —  incumbrance .  .  983 


4.  Promise  to  third  person 

to  pay  plaintiff 983 

5.  Promise    to    plaintiff    to 

pay  third  person 987 


CHAPTER  XXI 


ACTIONS  ON   NEGOTIABLE  PAPER 


I.     RULES     APPLICABLE     TO    NEGO- 
TIABLE  PAPER   GENERALLY 

1.  General  order  of  proof. .  .  990 

2.  Production 992 

3.  Lost  or  destroyed  paper .  994 

4.  Proof  of  execution 996 

5.  Admissions 999 

6.  Testimony   of   the   sup- 

posed writer 1001 

7.  Direct  testimony  to  sig- 

nature    1002 

8.  Witness  who  knows  the 

handwriting  generally .  .  1002 

9.  Means  of  knowledge.  .  . .   1003 
10.  Opinion  or  belief 1006 


11.  Refreshing  memory 1007 

12.  Testing  the  witness 1007 

13.  Comparison  of  hands ....  1008 

14.  Opinions  of  witnesses. . . .  1013 

15.  Matters  of  description . . .  1015 

16.  Qualifications  of  witness .  1015 

17.  Photographs 1016 

18.  Mark 1016 

19.  Identity  of  names 1017 

20.  Fictitious  person 1017 

21.  Joint  makers,  &c 1018 

22.  Married  woman 1018 

23.  Agent's  signature 1019 

24.  Partnership  signature.  .  .  1021 

25.  Corporation  paper 1023 


TABLE    OF   CONTENTS 


XXV11 


CHAPTER  XXI. — ACTIONS  ON  NEGOTIABLE  PAPER — continued 


PAGE 

26.  Oral  evidence  to  show  real 

party 1025 

27.  Evidences  of  title 1027 

28.  Delivery 1029 

29.  Consideration 1031 

30.  Accommodation  paper. . .  1039 

31.  Alterations 1040 

32.  —  how  pleaded 1044 

33.  —  mode  of  proof 1045 

34.  Blanks 1047 

35.  Marks  of  cancellation .  .  .  1048 

36.  General  rule  as  to  oral 

evidence  to  vary 1048 

37.  Date 1053 

38.  Time  of  payment 1054 

39.  Amount 1055 

40.  Medium 1056 

41.  Interest 1057 

42.  Place  of  payment 1057 

43.  Defeasance 1058 

44.  Particular    fund;    agree- 

ment to  set-off;  to  re- 
new   1060 

45.  Subsequent  modification .  1060 

46.  Indorsement 1061 

47.  Oral  evidence  to  vary  an 

indorsement 1062 

48.  Indorsement  as  a  transfer 

of  title 1067 

49.  Demand 1068 

50.  Non-payment 1069 

51.  Indorsements     of     pay- 

ments, &c 1069 

52.  Competency  of  a  party  to 

the  instrument  to  im- 
peach   it.    The    New 

York  rule ,..  1070 

53. —  the  United  States  Court 

rule 1070 

54.  Admissions  and  declara- 

tions   1072 

55.  Foreign  law 1074 


PAGE 

II.  ACTION  BY  PAYEE  (OR  ORIGINAL 
"  BEARER")    AGAINST    MAKER 

56.  Plaintiff's  case 1076 

III.   ACTION   AGAINST  ACCEPTOR 

57.  Acceptance 1078 

58.  Other  facts 1079 

59.  Promise  to  accept 1079 

60.  Several  parts,  or  dupli- 

cates     1080 

IV.  ACTION  AGAINST  DRAWER;  ON 

NON-ACCEPTANCE 

61.  Refusal  to  accept 1081 

62.  Excuse  for  non-present- 

ment    1082 

V.  ACTION  AGAINST   DRAWER,    &C.J 

ON  NON-PAYMENT 

63.  Acceptance  and  present- 

ment    1082 

VI.     ACTION     AGAINST     INDORS- 
ERS,    &C. 

64.  Execution  of  the  instru- 

ment     1083 

65.  Pleading  facts  to  charge 

indorser 1084 

66.  Cogency  of  the  evidence .  1085 

67.  Time  of  demand 1086 

68.  Place 1087 

69.  Authority 1088 

70.  Identity    of    maker    or 

drawee,  and  authority 

of  agent  or  servant. . . .   1088 

71.  Production  of  the  instru- 

ment    1089 

72.  Due  diligence  in  demand  1090 

73.  Official    protest    as    evi- 

dence    1090 

74.  Sealed  certificate 1096 

75.  Unsealed  certificate .  .      .   1097 


XXV111 


TABLE    OF   CONTENTS 


CHAPTER  XXI. — ACTIONS  ON  NEGOTIABLE  PAPER — continual 


79. 
80. 

81. 

82. 

83. 
84. 
85. 

86. 

87. 


89. 

90. 
91. 


92. 

93. 
94. 
95. 


PAGE 

Copy 1097 

Secondary  evidence 1098 

Memoranda    to    refresh 

memory 1098 

Memoranda  of  deceased 

person 1099 

Legal  notice  to  charge  in- 

dorser 1100 

Identity  of  person  served  1100 
Executors   and   adminis- 
trators     1 100 

Time  of  service 1101 

Actual  notice 1 102 

Due    diligence    by    the 

holder 1103 

Place  of  directing  notice .   1103 
Due     diligence     in     in- 
quiry    1105 

Evidence  of  the  contents 

of  the  notice 1106 

Extrinsic  evidence  as  to 

imperfect  notice 1 106 

Mailing 1107 

Inference  of  delivery  or 
mailing  from  ordinary 

course  of  business 1109 

Admissions  of  demand 
made  and  notice  re- 
ceived   1110 

Indirect  evidence  of  no- 
tice   1111 

Waiver    of    demand    or 

notice 1111 

Want  of  funds  as  an 
excuse. .  .1113 


VII.  IRREGULAR  INDORSEMENT  (BY 

THIRD    PERSON   BEFORE    PAYEE) 

96.  Payee    against    irregular 

indorser.    New     York 
doctrine 1114 

97.  Defenses.  .  .1118 


PAGE 

98.  Subsequent       transferee 

against  irregular  indor- 
see   1118 

99.  The  United  States  Court 

doctrine 1118 

100.  Oral  evidence  to  vary  the 

ascertained  contract.. .   1121 

VIII.  DEFENSES  GENERALLY 

101.  Defenses     available 

against  all  holders, 
whether  bona  fide  or 
otherwise 1122 

102.  Failure  or  want  of  con- 

sideration    1 124 

103.  Accommodation  paper..  1126 

104.  Fraud 1128 

105.  Duress 1129 

106.  Impeaching      plaintiff's 

title 1130 

107.  Collateral  security 1132 

108.  Transfer  after  maturity.  1133 

109.  Suretyship,   and   dealing 

with  principal 1133 

110.  Payment 1135 

111.  Qualifying  agreement ...   1 138 

IX.  DEFENDANT'S    EVIDENCE    TO 

REQUIRE  PLAINTIFF  TO  PROVE 
TITLE  AS  A  BONA  FIDE  HOLDER 
FOR  VALUE  BEFORE  MATURITY 

112.  The  general  rule 1138 

113.  Failure  or  want  of  con- 

sideration     1 141 

X.  PLAINTIFF'S  EVIDENCE  OF  TITLE 

AS  HOLDER  FOR  VALUE  BEFORE 
MATURITY 

114.  Burden  of  proof 1142 

115.  Evidence  that  transfer 

was  before  maturity. ..   1145 

116.  —  and  before  notice  . . .   1146 


TABLE    OF   CONTENTS 


XXIX 


CHAPTER  XXI. — ACTIONS  ON  NEGOTIABLE  PAPER — continued 


PAGE 

117.  —  and  for  value 1146 

118.  Evidence  of  good  faith   1147 

119.  "Taking  up" 1148 

XL  DEFENDANT'S  EVIDENCE  THAT 

PLAINTIFF  IS  NOT  A  HOLDER  IN 
GOOD  FAITH 

120.  Bad  faith 1149 

121.  Notice 1150 

122.  Negligence 1151 

XII.  ACTION  ON  MUNICIPAL  AND 

OTHER   COUPON  BONDS 

123.  Title 1152 

124.  Evidence   of   regularity 

and  power 1152 

125.  Notice  of  defect,  &c. . . .   1155 


PAGE 

XIII.  BANK  CHECKS 

126.  Stamp 1155 

127.  Title 1156 

128.  Oral  evidence  to  vary.  .  1157 

129.  Laches 1157 

130.  Action  against  drawer.  .  1158 

131.  Action  against  the  bank.  1159 

XIV.  ACTION  ON  STOCK  AND  PRE- 
MIUM NOTES  GIVEN  TO  IN- 
SURANCE COMPANIES 

132.  Stock  notes 1160 

133.  Premium  notes 1160 

134.  Losses  and  assessments.  1161 

135.  Defenses.  .  .1161 


CHAPTER  XXII 

ACTIONS  ON   NON-NEGOTIABLE  PROMISSORY  NOTES 
1.  Peculiar  rules 1163 

CHAPTER  XXIII 

ACTIONS  ON  ACCOUNTS  STATED 

1.  Grounds  of  action 1166       9.  Tacit  assent  to  account 

2.  Pleading 1169  stated 1180 

3.  Character    of    the    par-  10.  Defendant's  evidence  to 

ties 1 170  disprove  assent 1184 

4.  The  account  and  its  state-  11.  Incapacity 1184 

ment 1170      12.  Impeaching  the  account 

5.  The  promise 1173  itself 1185 

6.  Testimony    of    witness:  13.  Consideration 1187 

production  of  account.   1178      14.  Omissions  and  errors ....   1187 

7.  Res  gestce 1180      15.  Offsets 1188 

8.  Express  assent 1180      16.  Limitations 1188 


XXX 


TABLE    OF   CONTENTS 


CHAPTER  XXIV 


ACTIONS  ON  AWARDS 


PAGE 

1.  Fact  of  submission 1189 

2.  Its  scope 1192 

3.  Promise  to  abide  award  .  1193 

4.  Umpire,  &c 1194 

5.  Oath 1194 

6.  Enlargement  of  time ....  1 195 

7.  Making  award 1196 

8.  Presumptions  in  favor  of 

award.  .  .1197 


PAGE 


9.  Extriasic    evidence      to 

vary 1200 

10.  Effect  of  award 1200 

11.  Competency  of  arbitrator 

as  witness 1201 

12.  Defenses;  pleading 1203 

13.  —   omissions;   excess   of 

authority 1204 

14.  —  other  objections 1206 


CHAPTER  XXV 


ACTIONS   ON  GUARANTIES 


1.  Oral  contract 1211 

2.  Promise    to    answer    for 

debt,  &c.  of  another. . .   1212 

3.  Execution    of    the    con- 

tract     1214 

4.  Consideration 1216 

5.  Rules       of       interpreta- 

tion     1218 

6.  Oral  evidence  to  vary .  .  .   1219 


7.  Transactions    under    the 

guaranty 1222 

8.  Non-payment     or     non- 

performance 1222 

9.  Admissions  and  declara- 

tions of  the  principal 
debtor 1223 

10.  Judgments 1225 

11.  Defenses.  .  .   1226 


CHAPTER  XXVI 


ACTIONS  ON  CONTRACTS  OF  INSURANCE 


I.  GENERAL  RULES 

1.  Action     on     preliminary 

agreement 1228 

2.  Execution  of  policy 1231 

3.  Deliverj- 1233 

4.  The  application 1234 

5.  Authority  and  scope  of 

agency 1238 

6.  Payment  of  premium. .  .  .    1242 

7.  Waiver  of  non-payment; 

excuse  for  failure .  .      .    1243 


8.  Renewal 1247 

9.  Ordinary  course  of  proof 

Prim  a  fade  case 1248 

10.  Warranties 1248 

11.  General  rule  as  to  oral 

evidence 1250 

12.  Circular  or  prospectus. .  .    1254 

13.  Mistake 1255 

14.  Usage 1255 

15.  Ownership    or    insurable 

interest.  .  .    1259 


TABLE    OF    CONTENTS 


XXXI 


CHAPTER  XXVI. — ACTIONS  ON  CONTRACTS  OF  INSURANCE — cant'd 


PAGE 

16.  Mode  of  proving  owner- 

ship   1261 

17.  The  peril 1262 

18.  Loss 1163 

19.  Value;  damage 1265 

20.  Preliminary  proofs 1267 

21.  Notice  to  company 1271 

forfeiture 1272 

22.  Waiver  of  conditions,  or 

forfeiture 1272 

23.  Adjustment 1274 

24.  Declarations  and  admis- 

sions   of    officers    and 

agents 1276 

25.  Defenses 1277 

26.  False  representations. .  .  .  1278 

27.  False  warranty 1279 

28.  Concealment 1279 

29.  Materiality  to  the  risk  . .  1280 

30.  Over-valuation 1282 

31.  Charge  of  crime 1283 

3 la.  Laws  of  other  states.  .  .  .  1286 


PAGE 

II.  RULES  PECULIARLY  APPLICABLE 

TO   MARINE   INSURANCE 

32.  Interest 1287 

33.  Warranties 1287 

34.  Seaworthiness 1288 

35.  Rating 1290 

36.  Shipment 1291 

37.  The  voyage 1292 

38.  Weather 1292 

39.  Loss 1293 

40.  Barratry 1294 

III.  RULES    PECULIARLY    APPLICA- 
BLE    TO    LIFE    AND     ACCIDENT 
INSURANCE 

40a.  Interest 1294 

41.  Disease;  death 1295 

42.  Suicide  and  insanity ....  1298 

43.  Declarations  and  admis- 

sions of  the  subject .  .  .    1300 

44.  Accident  insurance ..       .   1302 


CHAPTER  XXVII 


ACTIONS    ON    BONDS,   COVENANTS,   AND    OTHER    SEALED 

INSTRUMENTS 


I.  GENERAL  RULES 

1.  The  making  of  the  con- 

tract    1304 

2.  Execution 1305 

3.  Seal 1311 

4.  Sealed  authority 1311 

5.  Statutory  conditions.  ...    1312 

6.  Delivery 1312 

7.  Qualified  delivery 1313 

8.  Escrow 1315 

9.  Acceptance 1317 

10.  Date.  .  .1318 


11.  Consideration 1318 

12.  Oral  evidence  to  vary.  .  .   1320 

13.  Practical  construction. . .    1324 

14.  Lost  instrument 1324 

15.  Subsequent  modification.   1325 

16.  Breach 1326 

17.  Damages 1327 

18.  Fraud;  failure  of  consid- 

eration     1329 

19.  Reformation 1330 

20.  Declarations  and  admis- 

sions of  principal 1333 


XXXI 1 


TABLE    OF   CONTENTS 


CHAPTER  XXVII — ACTIONS  ON  BONDS,  COVENANTS,  &c. — continued 


PAGE 

II.  BONDS 

21.  Estoppel  by  recital 1335 

22.  Breach 1337 

23.  Administration  bonds .  .  .  1338 

24.  Bottomry  bonds 1340 

25.  Indemnity  bonds 1340 

26.  Official  bonds 1342 

III.  CHARTER-PARTIES 

27.  General  rule  as  to  oral 

evidence  to  vary 1344 

28.  Usage. 1346 

29.  Terms;      measurements; 

cargo;  capacity 1346 


PAGE 

30.  Performance 1347 

31.  Damages 1347 

32.  Demurrage,   or  damages 

for  detention 1348 

IV.  COVENANTS  FOR  TITLE 

33.  Implied  covenants 1349 

34.  Covenant  of  warranty. .  .    1349 

35.  —  of  seizin  and  right  to 

convey 1352 

36.  —  against  incumbrances.  1353 

37.  —  for  quiet  possession  or 

enjoyment 1354 


CHAPTER  XXVIII 
ACTIONS   ON   LEASES 


1.  Allegation  of  lease 1356 

2.  Mode  of  proving  the  con- 

tract   1357 

3.  Conditional  delivery ....  1360 

4.  General  rule  as  to  oral  evi- 

dence    1361 

5.  Parties 1364 

6.  Usage 1364 

7.  Practical  construction . . .  1365 

8.  Implied  covenants 1365 

9.  Identifying  the  premises .  1369 

10.  The  date  and  term 1370 

11.  Rate  of  rent 1372 

12.  Plaintiff's  title 1372 

13.  Possession  not  essential. .  1373 


14.  Tenant's  estoppel 1374 

15.  Adverse  title 1379 

16.  Forfeiture 1379 

17.  Assignment 1381 

18.  Demand 1382 

19.  Repairs 1383 

20.  Surrender 1384 

21.  Apportionment 1387 

21a.  Alteration     of     Instru- 
ment    1387 

22.  Payment 1388 

23.  Eviction 1388 

23a.  Letting  of  premises  for 

illegal  purpose 1390 

•2\.  Waste.  .  .  1391 


CHAPTER  XXIX 
ACTIONS   ON  JUDGMENTS 


I.  GENERAL  PRINCIPLES 

1.  The    several    modes    of 

proof 1393 

2.  Certified  copies 1394 


3.  Exemplifications 1395 

4.  Sworn  copies 1396 

5.  Imperfect  records 1396 

6.  Lost  judgment 1401 


TABLE    OF   CONTENTS 


XXX111 


CHAPTEE  XXIX. — ACTIONS  ON  JUDGMENTS — continued. 


PAGE 

7.  Date 1401 

8.  Identity  of  parties 1402 

9.  Docketing 1403 

10.  Impeaching 1403 

11.  Reversal 1405 

12.  Satisfaction 1406 

II.  JUDGMENT  OF  COURTS  WITHIN 

THE   STATE 

13.  The  New  York  practice  .   1407 

14.  Justice's  judgment 1407 

III.  RULES     PECULIAR     TO     JUDG- 
MENTS   OF    COURTS    OF    SISTER 
STATES,  &C. 

15.  Different      methods      of 

proof 1409 

16.  What  judgments  may  be 

proved  under  the  act  of 
Congress 1412 

17.  Requisites  of  proof  under 

the  act 1413 

18.  Certifying  officers 1414 

19.  Clerk's  attestation..       .   1415 


PAGE 

20.  Seal 1416 

21.  Judge's  certificate 1417 

22.  Presumption  in  favor  of 

jurisdiction 1420 

23.  Service 1425 

24.  Constructive  service ....  1427 

25.  Appearance 1430 

26.  Effect  of  judgment 1432 

27.  Justice's  judgment 1433 

28.  Former  adjudication ....  1434 

29.  Appeal  pending 1435 

30.  Limitations 1435 

IV.  UNITED  STATES  COURTS  AND 

THEIR   JUDGMENTS 

31.  Judgments  of  those  courts, 

how  proved  elsewhere .    1436 

32.  The     practice     in     the 

United  States  courts .  .    1437 

V.  FOREIGN  JUDGMENTS 

33.  Mode  of  proof 1438 

34.  Effect..  .   1439 


CHAPTER  XXX 


ACTIONS  AGAINST   BAILEES,  AGENTS,   ETC. 


I.  GENERAL  PRINCIPLES 

1.  Grounds  of  action 1442 

2.  Contract  of  bailment ....    1443 

3.  Oral    evidence    to    vary 

writing 1443 

4.  Plaintiff's  title 1445 

5.  Eviction 1445 

6.  Burden    of   proof   as   to 

breach  of  duty 1447 

7.  Qualified  refusal 1450 

8.  Value  and  damage 1451 


II.  RULES  PECULIAR  TO  PARTICULAR 
AGENCIES  AND   BAILMENTS 

9.  Gratuitous  bailments ....  1452 

10.  Attorneys 1453 

11.  Brokers 1455 

12.  Collecting  bankers 1456 

13.  Factors 1459 

14.  Forwarders 1461 

15.  Hirers  of  chattels 1462 

16.  Innkeepers 1462 

17.  Pledges 1466 

18.  Tows .  .  .  1466 


XXXI V 


TABLE    OF    CONTENTS 


PAGE 

19.  Warehousemen 1467 

20.  Wharfingers 1469 


III, 


CHAPTER  XXX. — ACTIONS  AGAINST  BAILEES,  AGENTS,  &c. — continued 

PAGE 

42.  Oral  evidence  to  explain 

or  vaiy  bill  or  receipt..  1492 

43.  Usage 1493 

44.  Declarations  of  agent?....   1494 

45.  Defenses;  Generally 1494 

46.  Contract    for    restricted 

liability 1496 

47.  Limited    liability    under 

the  act  of  Congress .  .  .    1499 

48.  Evidence  of  shipper's  as- 

sent;  The   New  York 
rule 1501 

49.  —  the  Illinois  rule 1503 

50.  Fraud  as  to  value 1504 

51.  Carriers'  delivery;  Notice 

to  consignees 1505 

52.  Act  of  God;   Inevitable 

accident . .  .   1508 


22. 
23. 

24. 
25. 

26. 
27. 

28. 
29. 
30. 
31. 

32. 
33. 
34. 

35. 

36. 
37. 
38. 
39. 
40. 
41. 


ACTIONS  AGAINST  COMMON  CAR- 
RIERS   OF   GOODS 

Defendant     a     common 

carrier 1469 

Delivery  to  carrier 1471 

Authority     of    receiving 

agent 1473 

Implied  contract 1475 

Address;    Instructions; 

"C.  O.  D." 1475 

Express  contract 1476 

Authority  to  make  spe- 
cial contracts 1477 

Description  of  goods ....  1479 

Amount 1479 

Condition 1480 

Instruction;  Route;  Ter- 
minus   1481 

Sotwage < 1482 

Time 1483 

Burden  of  proof  as  to  loss 

and  cause  of  loss 1484 

Contract    of    connecting 

lines 1487 

Non-delivery 1488 

Negligence 1489 

Cause  of  injury 1490 

Theft  or  robbery 1490 

Conversion 1491 

Plaintiff's  title. ..  .  1491 


IV.     ACTIONS    AGAINST    COMMON 

CARRIERS  OF  PASSENGERS  AND 
BAGGAGE 

53.  Plaintiff  a  passenger.  .  .  .  1509 

54.  Express  contract;  Tickets  1511 

55.  Authority  of  agency.  ...  1512 

56.  Baggage 1512 

57.  —  loss  or  non-delivery  .  .  1513 

58.  Negligence 1514 

59.  Authority  of  servant.  . . .  1514 

60.  Damages 1515 

61.  Defenses: — Restriction  of 

liability;  Extrinsic  evi- 
dence to  vary  ticket. ..    1516 

62.  Contributory  negligence .    1517 


CHAPTER  XXXI 
ACTIONS  FOR  NEGLIGENCE 


I.  GENERAL  RULES 

1.  Burden  of  proof 1519 

2.  The  pleading 1520 

3.  Elements  of  direct  proof .  1523 


4.  Degrees  of  negligence  . . .  1523 

5.  Privity 1524 

6.  The  casualty  as  evidence 

of  negligence 1524 


TABLE    OF   CONTENTS 


XXXV 


CHAPTER  XXXI. — ACTIONS  FOR  NEGLIGENCE — continued 


PAGE 

7.  Other  negligences 1529 

8.  Time  of  existence  of  de- 

fect   1533 

9.  Other  defects 1533 

10.  Incompetency 1534 

11.  Reputation 1534 

12.  Intemperance 1535 

13.  Opinions  of  witnesses. . . .  1535 

14.  Declarations  and  admis- 

sions generally 1542 

15.  Plaintiff's  declarations. .  .  1542 

16.  Defendant's    admissions, 

declarations,  and  con- 
duct   1544 

17.  Those  of  agents  and  serv- 

ants    1547 

18.  —  of  third  person  injured  1549 

19.  —  of  strangers 1550 

20.  Violation  of  statute 1551 

21.  — of  municipal  ordinance  1552 

22.  —  of  usage 1552 

23.  Ownership  of  the  thing 

injuring 1553 

24.  Connection  of  cause  with 

injury 1554 

25.  Notice  of  defect;  request.  1556 
25a.  Subsequent  precautions 

or  repairs 1056 

26.  The  delinquent  an  agent 

or  servant    of    defend 

ant 1558 

27.  Contractor  or  servant ...  1560 

28.  Common  employment. .  .  1561 

29.  Negligent      employment 

of  unfit  servant 1563 

30.  Plaintiff's  title 1567 

31.  Manner  of  injury 1568 

32.  Condition   of   person   or 

thing  injured 1568 


PAGE 

33.  Burden   of   proof   as   to 

contributory  negligence  1569 

34.  —  the  United  States  court 

rule 1570 

35.  —  the  Massachusetts  rule  1572 

36.  —  the  New  York  rule. . .   1573 

37.  Disproving    contributory 

negligence 1575 

38.  Contributory    negligence 

of  infants 1578 

39.  Effect  of  peril  on  witnes- 

ses     1579 

40.  Damages 1579 

41.  Loss  of  earnings 1580 

41a.  Expenses  incurred — med- 
ical services 1581 

42.  Suffering,    and   imparied 

powers 1583 

43.  Continuing  effect 1585 

44.  Testimony  of  the  party . .  1585 

45.  Expressions  of  suffering. .   1586 

46.  Opinions  of  witnesses. . . .   1590 
46a.  Disclosure     of     profes- 
sional information .  .  .     1593 

47.  Plaintiff's     family     and 

circumstances 1595 

48.  Defendant's  wealth 1596 

49.  Exemplary  damages 1596 

50.  Action  for  causing  death.  .1596 
50a.  Action  in  another  state .  1600 

II.  DEFENSES 

51.  Disproof  of  negligence. .  .    1601 

52.  Advice 1601 

53.  Former  acquittal 1602 

54.  Plaintiff's   contributory 

negligence 1602 

55.  Plaintiff's  conduct  illegal   1604 

56.  Mitigation 1604 


XXXVI 


TABLE    OF   CONTENTS 

CHAPTER  XXXII 


PAGE 

1.  The  undertaking  to  carry  1606 

2.  Burden   of   proof   as   to 

cause  of  error .  .  .   1608 


PAGE 

3.  Damages 1612 


CHAPTER  XXXIII 

ACTIONS  BY  AND  AGAINST  SHERIFFS,  CONSTABLES  AND 

MARSHALS. 


1.  Official  character  and  acts  1614 

2.  Officer's  action  against  re- 

ceiptor 1614 

3.  Officer's  action  for  con- 

version or  trespass. ...   1616 

4.  —  for    price    of    goods 

sold 1617 

5.  Officer's  against  attorney 

or  party,  for  fees 1617 

6.  Action  against  officer,  for 

failure  to  serve  or  col- 
lect process 1617 

7.  —defenses...  .   1619 


8.  Action  for  storage 1621 

9.  Action  for  loss  of  prop- 

erty from  custody.  ...  1621 

10.  — for  failure  to  pay  over.  1621 

11.  —  for  taking  insufficient 

security,  or  as  bail. . . .  1622 

12.  —for  escape 1623 

13.  Action  defenses 1626 

14.  — for  failure  to  return. . .  1627 

15.  — for  false  return 1631 

16.  Admissions,  declarations, 

and  conduct  of  deputies, 

&c..  .  1683 


CHAPTER  XXXIV 


ACTIONS  FOR  DECEIT  OR  FRAUD 


1.  Frame  of  the  action 1635 

2.  The  representation 1636 

3.  Liberal  rule  of  evidence: 

Cogency 1639 

4.  Falsity 1640 

5.  —  as  to  solvency,  &c. .  .  .   1641 

6.  —  reason  to  believe  one 

insolvent,  &c 1643 

7.  Scienter 1644 

8.  Intent  to  deceive .  .         .   1645 


9.  Plaintiff's  reliance 1648 

10.  Damages 1650 

11.  Oral    evidence    to    vary 

writing 1651 

12.  Testimony    of    the    par- 

ties    1653 

13.  Declarations  of  conspira- 

tors    1654 

14.  Defenses 1655 

15.  — former  adjudication.  .    1657 


TABLE    OF   CONTENTS 


XXXV11 


ACTIONS   FOR  CONVERSION 


PAGE 

1.  Frame  of  the  complaint  .    1658 

2.  The  existence  and  iden- 

tity of  the  thing 1660 

3.  Plaintiff's  title 1661 

4.  Possession  as  evidence  of 

title 1662 

5.  Mode  of  proving  posses- 

sion      1663 

6.  Mode  of  proving  source 

of  title 1663 

7.  Title  by  mortgage 1666 

8.  Equitable  title;  hen 1667 


PAGE 

9.  Plaintiff  owner,  notwith- 
standing void  sale ....  1668 

10.  The  conversion 1669 

11.  Demand 1674 

12.  Value 1674 

13.  Declarations    of    former 

owner 1677 

14.  Title  in  defense 1677 

15.  Title     derived     through 

wrongdoer 1678 

16.  Illegality 1679 

17.  Mitigation  of  damages. .  1679 


CHAPTER  XXXVI 


ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY 


1.  Plaintiff's  title  or  posses- 

sion     1681 

2.  The  act  of  trespass 1683 

3.  Value  and  damages 1684 

4.  Admissions  and  declara- 

tions     1687 

5.  Character.  .  .    1688 


6.  Action  for  wrongful  levy  1689 

7.  —  defendant's  sanction .  .  1690 

8.  —  justification 1692 

9.  —  exemption  from  execu- 

tion     1696 

10.  Justification  by  tax  col- 
lector. .  .   1698 


CHAPTER  XXXVII 

ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY 


1.  Plaintiff's  title 1700 

2.  Possession 1706 

3.  Acts  of  trespass 1708 

4.  The     purpose      of     an 

act 1711 

5.  Damages 1711 


6.  Defense;  Disproof  of  the 

trespass 1714 

7.  Justification 1714 

8.  Defendant's     title     and 

possession 1715 

9.  Easements,  ways,  &c. .  .  .  1717 
10.  License.  .                         .1717 


XXXV111 


ACTIONS  FOR   NUISANCE 


PAGE 

1.  Plaintiff's  title  and  pos- 

session    1720 

2.  Easements 1720 

3.  Highway 1723 

4.  Defendant's  title 1724 

5.  The  nuisance . .                .  1724 


PAGE 

7.  Cause  and  effect 1728 

8.  Notice    and    request    to 

abate 1728 

9.  Damages 1729 

10.  Former  adjudication.  .  .  .    1733 

11.  Defendant's  right  or  title.   1733 


6.  The  injury 1726      12.  Reasonable  care,  &c 1734 


CHAPTER  XXXIX 

ACTIONS  FOR  INJURIES  BY  ANIMALS 
3.  Notice  to  keeper . . 


1.  Wild  beasts 1736 

2.  Dangerous  character ....    1736 


1738 


CHAPTER  XL 


ACTIONS  FOR  ASSAULT  AND   BATTERY 


1.  Assault,  by  whom  com- 

mitted    1742 

2.  By  servant,  &c 1742 

3.  Manner      and      circum- 

stances . , 1744 

4.  Plaintiff  the  aggressor . . .  1746 

5.  Intent  or  motive 1746 

6.  The  res  gestce  of  an  as- 

sault   1749 

7.  Criminal  conviction ..     .  1750 


8.  Admissions  and  declara- 

tions     1751 

9.  Requisite  cogency  of  evi- 

dence     1751 

10.  The  injury,  and  damages  1751 

11.  Defense — Justification.  . .   1754 

12.  Plaintiff  the  aggressor. . .   1754 

13.  Provocation 1755 

14.  Character 1757 

15.  Previous  punishment. .  .  .   1758 


CHAPTER  XLI 
ACTIONS   FOR  MALICIOUS   PROSECUTION 


1.  Grounds  of  action 1759 

2.  The  prosecution 1760 

3.  Defendant's  agency 1762 


4.  Several  co-defendants.  .  .   1763 

5.  Plaintiff's  innocence 1764 

6.  Want  of  probable  cause  .    1765 


TABLE    OP   CONTENTS  XXXIX 

CHAPTER  XLI. — ACTIONS  FOE  MALICIOUS  PROSECUTION — continued 

PAGE  PAGE 

7.  Malice 1768      10.  Defense;    Truth    of    the 

8.  Termination  of  the  pros-  charge 1773 

ecution 1770      11.  Probable  cause 1774 

9.  Damages 1772      12.  Freedom  from  malice 1778 

13.  Advice  of  counsel...         .   1779 


CHAPTER  XLII 

ACTIONS  FOR  FALSE  IMPRISONMENT 

1.  General  rules 1781        3a.  Character 1783 

2.  Grounds  of  action 1781        4.  Damages 1783 

3.  Legal  process,  &c 1782        5.  Justification 1784 

CHAPTER  XLIII 

ACTIONS  FOR   SLANDER  OR   LIBEL 

1.  Order  of  proof 1787  15.  Action  on  privileged  com- 

2.  Inducement 1787  munication 1804 

3.  Plaintiff's  vocation,  &c...  1788  16.  Slander  of  title 1806 

4.  Good  repute 1789  17.  Damages 1806 

5.  Slander. ..  .* 1789  18.  Defense;  Explaining   the 

6.  —  its  utterance 1791  words 1809 

7.  Publication  of  libel 1792  19.  Privileged   communica- 

8.  —  its  place  and  time 1794  tion 1810 

9.  —  contents 1795  20.  Justification. 1810 

10.  Meaning  of  the  words. . .    1796      21.  Former  recovery 1814 

11.  Their  application  to  the  22.  Mitigation 1815 

plaintiff 1797  23.  Plaintiff's  character 1818 

12.  Circulation 1799  24.  Mode  of  proving  charac- 

13.  Falsity 1799  ter 1820 

14.  Malice 1800  25.  Rebuttal 1821 

14a.  Defendant's  wealth 1804 

CHAPTER  XLIV 
ACTIONS  FOR  BREACH  OF  PROMISE  OF  MARRIAGE 

1.  Mutual  promises 1822  5.  Damages 1831 

2.  Letters 1827  6.  Defense 1834 

3.  Affection 1829  7.  —  justification  of  breach.  1835 

4.  Breach. .                           .  1829  8.  —  mitigation 1837 


Xl  TABLE    OF    CONTENTS 

CHAPTER  XLV 
ACTIONS  FOR  SEDUCTION  OR  ENTICING  AWAY 

PAGE  PAGE 

1.  Husband's  action  for  en-  5.  Loss  of  service 1845 

ticing 1840  6.  Good  faith 1846 

2.  Master's  action 1841  7.  Character 1846 

3.  Parent's  action 1842  8.  Defense 1848 

4.  Seduction 1843 

CHAPTER  XL VI 

ACTIONS  FOR  CRIMINAL  CONVERSATION 

1.  Competency  of  witnesses.  1849        5.  Loss  of  consortship;  Dam- 

2.  Marriage 1851  ages 1855 

3.  Affection    and    domestic  6.  Defenses 1856 

happiness 1852       7.  Character 1858 

4.  Criminal  intercourse .  .    .   1854 


ACTIONS  TO  RECOVER  POSSESSION  OF  SPECIFIC  PERSONAL 
PROPERTY  (REPLEVIN) 

1.  Existence    and    identity  5.  Demand 1867 

of  the  thing 1861        6.  Damages 1868 

2.  Plaintiff 's  ownership .  .  .  .   1862       7.  Declarations  and  admis- 

3.  Defendant's   taking   and  sions  of  former  posses- 

possession  1866  sor 1870 

4.  Fraud 1867        8.  Defense 1870 

CHAPTER  XLVIII 

ACTIONS  TO  AFFECT  THE  TITLE  OR  POSSESSION  OF  REAL 

PROPERTY 

I.  ACTIONS  TO  RECOVER  THE  POS-       3.  Possession  as  evidence  of 

SESSION     OF     REAL    PROPERTY.  title 1876 

(EJECTMENT)  4.  Title  by  deed 1879 

1.  Plaintiff's  title 1873        5.  —  delivery,  and  date.  . . .   1882 

2.  Title  of  state 1876        6.  —  parties 1885 


TABLE    OF    COXTENTS 


Xli 


CHAPTER  XXL VIII. — ACTIONS  TO  AFFECT  THE  TITLE,  &c.  continual 


PAGE 

7.  —  alterations 1888 

8.  —  connected  instruments  1889 

9.  —  consideration 1890 

10.  —  oral  evidence  to  vary 

or  explain 1892 

11.  —  boundaries 1896 

12.  —  deed    under    legal    or 

judicial  authority 1900 

13.  —  on  execution  sale 1904 

14.  —  on  surrogate's  sale. . .  .    1906 

15.  —  on  tax  sale 1907 

16.  Grantor's  title 1910 

17.  State  grant 1912 

18.  Landlord  and  tenant.  . . .    1913 

19.  Mortgagor  and  mortgagee  1915 

20.  Vendor  and  purchaser.  .  .  1915 

21.  Entry 1916 

22.  Title  by  descent  or  devise  1916 

23.  Dower 1916 

24.  Curtesy 1918 

25.  Title   under   ancient   in- 

strument     1918 

26.  Lost     instrument,     and 

secondary  evidence .  .  .    1920 

27.  Presumed  grant 1922 

28.  Deed   void   for   adverse 

possession 1923 

29.  Impeaching  deed  on  equi- 

table grounds 1924 

30.  Admissions     and     declara- 

tions. .  .   1925 


PAGE 

31.  Recitals 1929 

32.  Estoppels 1930 

33.  Former  adjudications.  .  .  1931 

34.  Defendant's     possession; 

Ouster 1933 

35.  Mesne  profits 1934 

36.  Defenses 1935 

37.  —  adverse  possession. .  . .  1936 

38.  — bona  fide  purchaser .  .  .  1939 

II.  ACTIONS  TO  DETERMINE  CON- 

FLICTING CLAIMS 

39.  Mode  of  proof 1944 

III.  ACTIONS  TO  REMOVE  CLOUD  ON 

TITLE 

40.  Mode  of  proof 1945 

IV.  ACTIONS  OF  FORECLOSURE 

41.  Foreclosure    of   vendor's 

lien 1947 

42.  Foreclosure  of  mortgage .    1948 

43.  Defendant's  liability;  de- 

mand and  default 1950 

44.  Defenses 1952 

V.  ACTIONS  TO  REDEEM 

45.  Mode  of  proof 1955 

VI.  ACTIONS  OF  PARTITION 

46.  Mode  of  proof 1957 


CHAPTER  XLIX 
ACTONS  BETWEEN  VENDOR  AND  PURCHASER 


1.  The  contract 1962 

2.  Oral     evidence     to     ex- 

plain    1964 

3.  Implied  covenants;  time.  1965 

4.  Title..  .  1966 


5.  Plaintiff's     performance; 

breach 1967 

6.  Value 1968 

7.  Contract  merged  by  deed  1970 

8.  Actions  to  recover  back 

purchase-money 1971 


xlii                                         TABLE    OF  CONTENTS 

CHAPTER  XLIX. — ACTIONS  BETWEEN  VENDOR  AND  PURCHASER — continued 

PAGE  PAGE 

9.  Fraud  or  misrepresenta-  11.  — oral    contract    partly 

tion 1972  performed 1974 

10.  Specific  performance;  the  12.  — plaintiff's     title     and 

contract 1973  performance 1976 


CHAPTER  L 

ACTIONS  FOR  REFORMATION  OR  CANCELLATION  OF 
INSTRUMENT 

1.  Nature  of  the  action 1978  peached 1980 

2.  The    instrument    im-  3.  Grounds  of  impeachment  1980 

CHAPTER  LI 

ACTIONS  BY  JUDGMENT  CREDITORS 

1.  Judgment 2000  8.  Intention  of  the  debtor. .  2015 

2.  Execution 2000       9.  —  of  his  grantee 2018 

3.  Indebtedness  to  plaintiff  2002  10.  Admissions  and  declara- 

4.  Fraud 2004  tions 2021 

5.  The  consideration 2011      11.  Defenses 2025 

6.  Indebtedness     to     other  12.  —  evidence  of  considera- 

creditors 2012  tion 2026 

7.  Voluntary  settlement. . . .   2012 


CHAPTER  LII 

ACTIONS   FOR   DIVORCE 

1.  Marriage 2029  9.  Adultery,  and  as  to  para- 

2.  Fraud 2029  mour 2039 

3.  Impotence 2030      10.  —  delay 2039 

4.  Adultery 2030      11.  —  character 2040 

5.  —  circumstantial        evi-  12.  Cruelty 2040 

dence 2033      13.  Witnesses 2041 

6.  —  cogency  of  proof 2035  14.  Confessions   and   admis- 

7.  —  opinions  of  witnesses. .    2037  sions 2043 

8.  —  limits   of  the  issue  of  15.  Condonation 2045 

adultery  in  respect  to 
time  and  place 2037 


•          TABLE    OF    CONTENTS  xliii 

CHAPTER  LIII 
ACTIONS  FOR  QUO  WARRANTO 

PAGE  PAGE 

1.  Office 2047        2.  Corporations 2052 

CHAPTER  LIV 

ACTIONS   FOR   INFRINGEMENT   OF   TRADE-MARKS 

1.  Plaintiff's  title 2054        4.  Damages 2058 

2.  Resemblance   of  defend-  5.  Witnesses 2059 

ant's  mark 2056        6.  Defenses 2060 

3.  Intent 2057 

CHAPTER  LV 

ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS  AND 
COPYRIGHTS 

I.  PATENTS  14.  Defenses.    General  issue: 

1.  Burden  of  proof;  General  Burden  of  proof 2076 

evidence  of  validity. .  .  2063  15.  —  title:  license 2077 

2.  Novelty  of  invention.  .  ..  2065  16.  — defendant's  patent.  .  .  2078 

3.  Utility 2066  17.  —  the  statute 2079 

4.  Patentee  the  original  and  18-  ~  fraud 208° 

first  inventor 2067      19-  ~  description  in  printed 

5.  Specifications:  Construe-  publication..  .   2080 

tion:  Extent  of  claim .  .  .2068  20'  -  Pnor  knowledge  or  «*>  2081 

a    rr,.,,  -„„.,  21.  — public  use  or  sale  be- 

o.  litle 20/0  .  ,.     ,.         , 

_    _,  ,  _,  ,    _.  fore  application;  aban- 

7.  Extension:  Renewal:  Re-  ,  „__ 

donment 2082 

22.  —  requisites  of  the  statu- 

8.  State  of  the  art .  .  tory  notjce  Qr  angwer     ^ 

9.  Infringement 2072      33     -plaintiff's     failure    to 

10.  Witnesses:  Models 2073  mark  2084 

11.  Admissions  and  declara- 

tions  2074  II.  COPYRIGHTS 

12.  Certified  copies 2074      24.  Plaintiff's  rights 2085 

13.  Damages 2075      25.  Infringements 2085 


xliv 


TABLE    OF   CONTENTS 

CHAPTER  LVI 


ACTIONS  FOR  VARIOUS  CAUSES  CREATED  OR  DEFINED  BY 

STATUTE 


PAGE 

I.  MECHANIC'S  LIEN 

1.  Mode  of  proof 2089 

II.  INDIVIDUAL  LIABILITY  OF  STOCK- 
HOLDERS AND  TRUSTEES  OF 
CORPORATIONS  AND  JOINT 
STOCK  COMPANIES 

2.  Incorporation;        Bank- 

ruptcy    2090 

3.  Defendant  a  stockholder.  2090 

4.  —  a  director  or  trustee . .   2093 

III.  PENALTIES 

5.  Statute 2094 

6.  Municipal  ordinance ....   2094 

7.  Violation 2096 

8.  Excepted  cases 2097 

9.  Knowledge  of  the  law. . .   2098 

10.  —  of  facts 2098 

11.  Knowing   or   intentional 

violation 2099 

12.  Admissions  and  declara- 

tions    2100 

13.  Character 2100 

14.  Cogency  of  proof 2100 

15.  Obstructing  highways. . .  2101 

16.  Selling  liquors 2102 

IV.  ACTIONS  (UNDER  CIVIL  DAMAGE 

LAW)    FOR   CAUSING    INTOXICA- 
TION 

17.  Ground  of  action 2104 

18.  Order  of  proof 2105 

19.  Relation   of    plaintiff   to 

the  drunkard 2106 

20.  Sale  or  gift  of  liquor 2106 

21.  Liabilitv  of  salesman ..    .  2107 


PAGE 

22.  —  of  principal .-  2108 

23.  Connecting        defendant 

with  salesman 2109 

24.  —  with  business 2109 

25.  Connecting  sale  with  in- 

toxication    2110 

26.  Character  of  liquor 2110 

27.  Knowledge  and  intent  of 

seller 2111 

28.  Fact  of  intoxication 2112 

29.  Liability  of  owner  or  les- 

sor   2113 

30.  Contributory  negligence .   2113 

31.  Actual  damages 2114 

32.  —  to  the  person 2115 

33.  Actual  damages  to  prop- 

erty   2116 

34.  —  to  means  of  support .  .   21 16 

35.  Exemplary  damages 2118 

36.  Defenses; — limitations. .  .   2119 

37.  —  sale  for  medicine 2120 

38.  —  other  sellers  contribut- 

ing to  injury 2121 

39.  —  plaintiff's    connivance 

or  negligence 2121 

40.  —  former     adjudication; 

satisfaction 2122 

V.  PROCEEDING  IN  REM  FOR  FOR- 
FEITURE 
'41.  Burden  of  proof 2122 

42.  Knowledge  and  notice. .  .   2123 

43.  Admissions  and  declara- 

tions    2123 

44.  Cogency  of  proof 2124 

VI.  ACTIONS  ox  RECOGNIZANCES 

45.  Mode  of  proof 2124 


TABLE    OF    CONTENTS 

CHAPTER  LVII 

PROCEEDINGS  IN  ADMIRALTY 
1.  Mode  of  proof 


xlv 


PAGE 

2125 


PART  III 
EVIDENCE  AFFECTING  PARTICULAR  DEFENSES 


1.  Parties. 


CHAPTER  LVIII 
DEFENSES  IN  ABATEMENT 

PAGE  PAGE 

2130        2.  Another  action  pending. .  2131 


CHAPTER  LIX 


PAYMENT   OR   OTHER   DISCHARGE 


I.  DENIAL  OF  ASSENT 

1.  Fraud  or  deceit 2133 

2.  Mistake 2135 

3.  Duress 2136 

4.  Want  of  consideration. .  .  2136 

5.  Statute  of  frauds 2138 

6.  Forgery 2139 

7.  Alterations 2139 

II.  ILLEGALITY  OF  CONTRACT 

8.  General  rules 2139 

9.  Compounding  felony. . . .  2142 

10.  Sunday  laws 2142 

11.  Usury:  pleading;  burden 

of  proof 2144 

12.  —  estoppel  by  certificate  .  2146 


13.  —  oral  evidence 2147 

14.  —  variance 2148 

15.  —  intent 2148 

16.  —  covers  for  usury 2151 

17.  Usury;  act  of  agent  or  co- 

trustee  2152 

18.  —  inception 2154 

19.  —  declarations    and    ad- 

missions  • 2154 

III.  INCAPACITY  OF  CONTRACTING 
PARTY 

20.  Infancy 2154 

21.  — new   promise:   admis- 

sions and  declarations  2155 

22.  Insanity 2156 


.xlvi 


TABLE    OF   CONTENTS 


CHAPTER  LX 


DEFENSES    DENYING 


OR    IMPEACHING 
SUED  ON 


THE    CONTRACT 


PAGE 

I.  PAYMENT 

1.  Pleading;  and  burden  of 

proof 2159 

2.  Oral  evidence;  res  gestce..  2163 

3.  Authority  to  pay 2164 

4.  Agent's  authority  to  re- 

ceive    2164 

5.  —  presumed  from  agency 

in  sale 2167 

6.  —  from  possession  of  se- 

curity, &c 2168 

7.  Payment  to  assignor.  ...  2171 

8.  —  to  executors,  trustees, 

&c 2172 

9.  —  to  sheriff 2172 

10.  Payment  by  mail 2173 

11.  —  by  check  or  draft 2175 

12.  —  by  note,  &c.,  of  debtor 

or  third  person 2177 

13.  — by  obligation  of  joint 

debtor,  &c 2182 

14.  — by  delivery  of  property  2182 

15.  Payment  of  collateral .  .  .   2182 

16.  Receipts 2183 

17.  Part  payment,  in  full.. . .   2186 

18.  Admissions,   entries   and 

memoranda 2189 

19.  Possession  of  instrument; 

indorsements 2189 

20.  Presumption  of  payment 

from  subsequent  trans- 
actions    2190 

21.  Circumstantial  and   cor- 

roborative evidence. . .   2191 

22.  Application  by  the  debtor  2192 


PAGE 

23.  Application  by  the  credi- 
tor  ' 2194 

2*.  —  by  the  court 2196 

25.  Presumption  of  payment 

from  lapse  of  time ....   2197 

II.    ACCORD    AND    SATISFACTION 

26.  Mode  of  proof,  and  effect  2203 

III.  ACCOUNT  STATED 

27.  Mode  of  proof,  and  effect  2207 

IV.  COMPROMISE  AND  COMPOSITION 

28.  Mode  of  proof,  and  effect  2209 

V.  TENDER 

29.  Necessity,   and  more  of 

proof 2211 

VI.  RELEASE 

30.  Mode  of  proof,  and  effect  2216 

31.  Oral  evidence 2218 

32.  Impeaching 2219 

VII.  SURETYSHIP  AND  MODIFICATION 

OF   CONTRACT 

33.  Defendant  a  surety 2221 

34.  Modification 2222 

VIII.  DISCHARGE 

35.  In  bankruptcy 2222 

36.  —  impeaching 2224 

37.  In  insolvency 2225 

38.  New  promise 2226 


TABLE    OF   CONTENTS 

CHAPTER  LXI 
LIMITATIONS 


xlvii 


PAGE 

1.  Pleading 2228 

2.  Burden  of  proof 2229 

.'}.  New  promise 2231 

4.  Conditional  new  promise  2234 


PAGE 

5.  Acknowledgment 2235 

6.  Part  payment 2235 

7.  Indorsement  of  payments  2237 


CHAPTER  LXII 


FORMER  ADJUDICATION 


1.  General  rules 2240 

2.  Former  recovery  as  merg- 

ing the  cause  of  action  2241 

3.  Splitting  cause  of  action  2243 

4.  Former   adjudication   as 

an  estoppel 2246 

5.  What  questions  are  con- 

cluded   2250 

6.  Construction    of    instru- 

ment   2251 

7.  Courts  and  tribunals.  .  .  .  2251 

8.  Exclusive  jurisdiction .  .  .  2252 

9.  Parties.  .  .  2254 


10.  Joint  defendants 2258 

11.  Form  of  the  adjudication  2259 

12.  Record  to  be  produced .  .   2262 

13.  What  questions  were  de- 

termined by  it 2263 

14.  Oral  evidence  to  explain 

record 2264 

15.  Set-off 2267 

16.  Rebuttal:  Want  of  juris- 

diction    2269 

17.  —fraud 2269 

18.  —  appeal ;  reversal 2270 

19.  —new  title..  .  2270 


1.  Pleading. 


CHAPTER  LXIII 

COUNTERCLAIMS 
2271       2.  Mode  of  proof;  admission  2274 


LOUIS  BOEDER 

ATTOENEf   AT    LAW 


PART  I 

EVIDENCE  AFFECTING  PARTICULAR 
CLASSES  OF  PARTIES 


CHAPTER  I 

ACTIONS  BY  AND  AGAINST  ASSIGNEES 


1.  Rules  applicable  to  assignees. 

2.  Allegation  of  assignment  ma- 

terial. 

3.  Requisite  proof  of  assignment. 

4.  Implied  assignment. 

5.  Statute  of  frauds. 

6.  Presumptive  evidence. 

7.  Consideration. 

8.  Gift. 

9.  Object,  when  material. 

10.  Best  and  secondary  evidence. 

11.  Proof  of  execution. 

12.  Delivery  and  acceptance. 

13.  Assignment  with  schedules. 

14.  Assignment  by  corporation. 

15.  Authority  of  officer  or  agent. 

16.  Parol  evidence  to  vary. 

17.  Equities  in  favor  of  assignor  or 

third  person. 

18.  Bona  fide  purchaser. 

19.  Notice  to  debtor. 

20.  Assignment    for    purposes    of 

suit. 

21.  —  or  as  collateral  security. 
22;  Assignees  in  insolvency. 


23.  Assignees  in  bankruptcy. 

24.  Purchaser  from  official  assignee. 

25.  Assignees  for  benefit  of  cred- 

itors. 

26.  Testimony  of  assignor. 

27.  Assignor's     declarations     not 

competent   in  favor  of   as- 
signee. 

28.  Their  competency  against  as- 

signee. 

29.  —  if  made  before  assignor  was 

owner. 

30.  —  if  made  after  he  ceased  to  be 

owner. 

31.  —  if  made  during  his  owner- 

ship. 

31a.  When  declarations  are  part  of 
the  res  gestce. 

32.  Preliminary  question. 

33.  Distinction    between    declara- 

tions and  transactions. 

34.  Declarations  admitted  in  case 

of  conspiracy. 

35.  Receipt  of  the  assignor. 

36.  Notice  to  produce. 


1.  Rules  Applicable  to  Assignees. 

To  avoid  repetition  when  discussing  rules  applicable  to 
particular  classes  of  actions,  we  will  first  consider  certain 
rules  which  are  common  to  many  classes  of  actions,  because 
applicable  generally  to  peculiar  classes  of  parties. 

1 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


The  rules  thus  applicable  to  the  assignees  are  not  limited 
to  transferees  by  formal  deed,  but,  with  qualifications  to  be 
indicated  as  we  proceed,  apply  generally  to  all  transferees  of 
non-negotiable  things  in  action. 

2.  Allegation  of  Assignment  Material. 

If  plaintiff  seeks  to  recover  upon  a  cause  of  action  which 
accrued  to  another  person,  and  became  the  plaintiff's  by 
assignment,  the  allegation  of  assignment  is  essential.  Under 
an  allegation  of  a  cause  of  action  accruing  to  the  plaintiff, 
proof  of  a  cause  accruing  to  his  assignor  is  not  admissible; l 


JThe  term  "assignment"  does 
not,  like  the  term  "deed"  or  "spe- 
cialty," signify  an  instrument  under 
seal.  Barret  v.  Hinckley,  124  111. 
32,  7  Am.  St.  Rep.  331,  14  N.  E. 
Rep.  863. 

An  assignee  of  an  open  account 
'cannot  recover  without  averring 
the  assignment.  Peirce  v.  Closter- 
house,  96  Mich.  124,  55  N.  W. 
Rep.  663. 

A  petition,  of  an  assignee  of  a 
chose  in  action,  which  does  not 
allege  that  the  assignment,  when 
required  to  be  in  writing,  was  in 
writing,  is  demurrable.  Foster  v. 
Sutlive,  110  Ga.  297,  34  S.  E.  Rep. 
1037;  Hartford  F.  Ins.  Co.  v.  Amos, 
98  Ga.  533,  25  S.  E.  Rep.  575. 

Where  the  complaint  shows  by 
implication  that  the  plaintiff  claims 
ownership  of  the  assigned  claim 
at  the  time  of  the  commencement 
of  the  action,  that  is  sufficient  as 
against  a  general  demurrer.  Krieg- 
er  v.  Feeny,  14  Cal.  App.  538,  112 
Pac.  Rep.  901. 

Proof  of  assignment  is  essential 
in  an  action  by  an  assignee  of  a 
claim  for  damages.  Hoppes  v.  Des 


Moines  City  R.  Co.,  147  la.  580, 
126  N.  W.  Rep.  783. 

An  assignment  is  not  an  execu- 
tory instrument;  it  is  completed 
by  the  delivery  of  the  assignment. 
Hull  v.  Hull,  172  App.  Div.  287, 
158  N.  Y.  Supp.  743. 

A  mere  litigious  right  cannot  be 
assigned.  Cooper  v.  Hillsboro 
Garden  Tracts,  78  Ore.  74, 152  Pac. 
Rep.  488. 

A  contract  involving  the  rela- 
tion of  personal  confidence  cannot 
be  assigned.  Central  Brass  & 
Stamping  Co.  v.  Stuber,  et  al., 
220  Fed.  Rep.  909, 136  C.  C.  A.  475. 

"Contracts  embodying  liabili- 
ties or  duties  which  in  express 
terms  or  by  fair  intendment  from 
the  nature  of  the  liabilities  them- 
selves import  reliance  on  the  char- 
acter, skill,  business  standing, 
particular  experience  or  capacity  of 
the  parties  cannot  be  assigned  by 
one  without  the  consent  of  the 
other."  Walker  Electric  Co.  v. 
N.  Y.  Shipbuilding  Co.,  241  Fed. 
Rep.  569. 

A  purchaser  of  land  cannot  as- 
sign to  another  the  right  to  sue  for 


ACTIONS   BY   AND   AGAINST  ASSIGNEES 


and  under  an  allegation  of  an  assignment,  proof  of  an  assign- 


a  rescission  of  the  contract.  Cooper 
v.  Hillsboro  Garden  Tracts,  78  Ore. 
74,  152  Pac.  Rep.  488. 

The  right  of  the  assignor  to  re- 
cover any  damages  which  accrued 
by  reason  of  the  breach  of  a  con- 
tract for  support  is  assignable  and 
the  action  may  be  maintained  in 
the  name  of  the  assignee.  Bryne 
v.  Dorey,  221  Mass.  399,  109  N.  E. 
Rep.  146. 

A  covenant  or  obligation  bind- 
ing the  seller  to  refrain  from  engag- 
ing in  a  like  business  within 
specified  territorial  limits  is  assign- 
able. Graca  v.  Rodrigues  (Cal.), 
165  Pac.  Rep.  1012;  Bennett  v.  Car- 
michael  Produce  Co.  (Ind.  App.), 
115  N.  E.  Rep.  793. 

Claims  against  railroad  com- 
panies for  injuries  to  property  may 
be  assigned  in  writing  and  each 
successive  assignee  thereof  may  sue 
thereon  in  his  own  name.  Ala. 
Code,  §  5159,  declared  constitu- 
tional. Parnell  v.  Southern  Ry. 
Co.  (Ala.),  74  So.  Rep.  437. 

Causes  of  action  for  personal  in- 
juries are  properly  subject  to  sale, 
barter,  contract  or  gift.  McClos- 
key  v.  San  Antonio  Traction  Co. 
(Tex.  Civ.  App.),  192  S.  W.  Rep. 
1116. 

An  assignment  of  a  claim  must 
be  alleged  and  proved.  Buffalo  Ice 
Co.  v.  Cook,  9  Misc.  434,  29  N.  Y. 
Supp.  1057;  Vestner  v.  Findlay,  10 
Misc.  410,  31  N.  Y.  Supp.  138; 
McKnight  v.  Lowitz,  176  Mich. 
452,  142  N.  W.  Rep.  769. 

Failure  to  allege  assignment  of  a 
replevin  bond  is  fatal  to  plaintiffs 


complaint.  Gallup  v.  Licther,  4 
Colo.  App.  296,  35  Pac.  Rep.  985. 

Demurrer  sustained  for  failure  to 
allege  assignment  of  account.  S.  C. 
Herbst  Importing  Co.  v.  Hogan, 
16  Mont.  384,  41  Pac.  Rep.  135. 

Demurrer  sustained  for  failure 
to  allege  assignment  of  claims. 
City  Bank  of  New  Haven  v.  Thorp, 
78  Conn.  211,  61  Atl.  Rep.  428; 
Bozarth  v.  Mallett,  11  Ind.  App. 
417,  39  N.  E.  Rep.  176. 

An  allegation  that  a  claim  was 
"duly"  assigned  is  a  sufficient 
averment  of  assignment.  Levy  v. 
Cohen,  103  App.  Div.  195, 92  N.  Y. 
Supp.  1074;  Buffalo  Tin  Can  Co.  v. 
E.  W.  Bliss  Co.,  118  Fed.  Rep. 
106. 

An  assignee  of  a  claim  for  goods 
sold  and  delivered  does  not  state 
a  cause  of  action  if  he  does  not 
allege  non-payment.  Packard  v. 
Automobile  Club  of  America,  90 
Misc.  642,  153  N.  Y.  Supp.  942. 

Where  a  transfer  is  valid  without 
a  written  assignment  none  need 
be  alleged.  Hobart  v.  Andrews,  21 
Pick.  (Mass.)  526. 

It  is  not  necessary  to  allege  as- 
signment in  a  declaration  of  trover. 
Warren  v.  Dwyer,  91  Misc.  414, 
51  N.  W.  Rep.  1062. 

Vague  and  uncertain  aver- 
ments of  assignment  are  not  suf- 
ficient. Caven- Williamson  Am- 
monia Co.  v.  Ice  Mfg.  Co.,  27  Pa. 
Super.  Ct.  381. 

A  contract  for  the  construction 
of  a  building  being  entire,  an 
assignee  of  a  subcontractor  cannot 
recover  for  part  of  the  work  done 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


by  the  subcontractor.  LaTour  v. 
Kibbler,  188  Mich.  140,  155  N.  W. 
Rep.  69.  No  particular  form  of 
words  is  required  to  constitute  a 
valid  assignment  of  a  chose  in 
action.  Any  act  showing  an  inten- 
tion to  transfer  a  party's  interest  is 
sufficient.  Macklin  v.  Kinealy,  141 
Mo.  113,  41  S.  W.  Rep.  893.  A 
debt  or  claim  may  be  assigned  by 
parol  as  well  as  by  writing.  Hooker 
v.  Eagle  Bank,  30  N.  Y.  83;  Fryer 
».  Rockfeller,  63  N.  Y.  268;  Risley 
v.  Bank,  83  N.  Y.  318;  Greene  v. 
Ins.  Co.,  84  N.  Y.  574;  Riker 
v.  Curtis,  17  Misc.  Rep.  (N.  Y.) 
134. 

Assignment  of  part  of  chose  in  ac- 
tion for  valuable  consideration  is 
good  in  equit}',  and  may  be  made 
either  by  direct  transfer,  or  by  an 
order  drawn  upon  the  particular 
fund.  Contra,  at  common  law, 
so  as  to  give  the  assignee  a  right 
of  action  upon  it.  Harris  County 
v.  Campbell,  68  Tex.  22,  2  Am.  St. 
Rep.  467, 3  S.  W.  Rep.  243. 

The  nineteenth  section  of  the 
New  Jersey  Practice  Act  (Revision 
1903)  which  permits  an  assignee  to 
sue  in  his  own  name  does  not  ex- 
tend to  a  case  where  the  claim  as- 
signed is  a  portion  of  the  assignor's 
wages  to  be  earned  in  the  future. 

Strenberg  &  Co.  v.  Lehigh  Valley 
R.  Co.,  78  N.  J.  L.  277,  73  Atl. 
Rep.  39,  affirmed  in  80  N.  J.  L. 
468,  78  Atl.  Rep.  1135. 

To  the  same  effect,  Otis  v. 
Adams,  56  N.  J.  L.  38,  29  A.  1092. 

If  part  of  an  obligation  or  de- 
mand has  been  assigned,  the  as- 
signee can  maintain  an  action  to 
recover  his  share  by  joining  the 


assignor  and  assignee  as  plaintiffs; 
or,  if  the  former  does  not  join,  by 
making  him  a  defendant,  so  that 
the  whole  controversy  may  be  set- 
tled in  one  suit.  Schilling  v. 
Mullen,  55  Minn.  122,  43  Am.  St. 
Rep.  475,  56  N.  W.  Rep.  836; 
O'Neil  v.  N.  Y.  Central  R.  R.  Co., 
60  N.  Y.  142.  But  the  court  had 
power  to  allow  an  amendment  at 
the  trial.  Ib.  143.  The  assign- 
ment of  a  demand  to  several 
people  for  the  purpose  of  paying  a 
certain  debt  is  an  assignment  of 
certain  parts  of  the  debt  to  each 
assignee.  Dudley  v.  Barrett,  66 
W.  Va.  363,  66  S.  E.  Rep.  507. 
Where  the  cause  of  action  origin- 
ally accrued  to  plaintiff,  and  has 
been  assigned  and  reassigned,  proof 
of  the  assignment  and  reassign- 
ment is  not  necessary  to  sustain 
the  action.  Washoe  v.  Hibernia 
Fire  Ins.  Co.,  7  Hun,  75;  Zany  v. 
Rawhide  Gold  Mining  Co.,  15  Cal. 
App.  373,  114  Pac.  Rep.  1026. 
And  where  the  plaintiff  was  en- 
titled, both  as  the  real  party  in 
interest,  and  as  assignee  of  his 
trustee,  he  may  recover  on  proof 
of  either  title.  Pitney  v.  Glen's 
Falls  Ins.  Co.,  65  N.  Y.  6,  18.  As- 
signments of  claims  made  by  for- 
eign executors  and  administrators 
in  their  own  jurisdiction  to  resi- 
dents of  the  State  of  New  York 
qualified  to  sue,  and  by  guardians 
of  infants,  if  sufficient  to  pass  a 
legal  title  to  the  claim  in  the  place 
where  the  assignments  are  made, 
will  be  recognized  in  the  State  of 
New  York.  Guy  v.  Craighead,  6 
N.  Y.  App.  Div.  463. 

Where  a  complaint  simply  avers 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


that  a  contractor  sold,  assigned, 
transferred  and  set  over  to  the 
plaintiff  assignee  certain  school 
district  warrants  and  all  of  his 
rights  thereunder,  without  alleging 
an  assignment  of  the  contract,  it 
is  demurrable.  Seattle  National 
Bank  v.  School  District,  No.  40, 
20  Wash.  368,  55  Pac.  Rep.  317. 

A  declaration  alleging  that  a 
note  was  transferred  to  the  plaintiff 
assignee  is  sufficient  to  permit  the 
suit  in  his  own  name.  Jordan  v. 
John  Ryan  Co.,  35  Fla.  259,  17 
So.  Rep.  73. 

If  the  assignee  of  an  account  at- 
taches the  assignment  to  the  ac- 
count and  annexes  them  to  the 
declaration  by  which  the  suit  is 
commenced,  and  serves  this  upon 
the  defendant,  he  need  not  aver 
the  assignment  in  his  declaration. 
Morrill  v.  Bissell,  99  Misc.  409,  58 
N.  W.  Rep.  324. 

If  defendant  city  claims  that 
the  assignment  sued  on  is  not  oper- 
ative as  to  it,  it  must  set  that  fact 
up  as  new  matter  of  defense;  a 
general  denial  of  the  assignment 
cannot  raise  such  question.  Burke 
v.  City  of  New  York,  7  N.  Y.  App. 
Div.  128,  40  N.  Y.  Supp.  81. 

Objection  that  the  complaint 
does  not  allege  an  assignment  must 
be  raised  by  demurrer.  Phipps  v. 
Bacon,  183  Mass.  5,  66  N.  E.  Rep. 
414. 

An  assignment  cannot  be  at- 
tacked for  fraud  where  the  answer 
contains  only  a  general  denial. 
Midler  v.  Lese,  45  N.  Y.  Misc.  637, 
91  N.  Y.  Supp.  148. 

A  denial  of  the  allegation  that  a 
receiver's  fees  were  duly  assigned, 


when  such  assignment  actually 
took  place  prior  to  the  time  when 
such  fees  were  earned,  will  be 
sufficient  to  raise  the  issue  of  the 
legal  effect  of  the  assignment. 
Colonial  Bank  v.  Sutton,  79  N.  Y. 
Misc.  244,  139  N.  Y.  Supp.  1002. 

A  copy  of  the  assignment  must 
be  filed  with  the  writ  in  accordance 
with  Maine  R.  S.,  chap.  82,  §  130, 
to  sustain  an  action  in  his  own  name 
by  the  assignee  of  a  non-negotiable 
chose  in  action.  National  Shoe  & 
Leather  Bank  v.  Gooding,  87  Me. 
337,  32  Atl.  Rep.  967. 

In  Arkansas  a  complaint  is 
fatally  defective  which  does  not 
allege  that  the  contract  assigning 
to  the  plaintiff  (an  attorney)  an 
interest  in  a  cause  of  action,  was 
acknowledged,  filed  with  the  papers 
in  the  case  and  noted  of  record, 
unless  the  complaint  alleges  that 
defendant  had  actual  knowledge  of 
the  assignment.  Kansas  City, 
etc.,  R.  Co.  v.  Joslin,  74  Ark.  551, 
86  S.  W.  Rep.  435. 

A  copy  of  an  assignment  of  a 
corporation  bond  to  the  plaintiff 
assignee  is  not  required  to  be  at- 
tached to  his  complaint;  a  demurrer 
on  such  ground  will  not  He.  Hayes 
v.  Mantua  Hall  Market  Co.,  12 
Pac.  Co.  Ct.  Rep.  441. 

Indorsement  of  a  written  instru- 
ment emanating  from  defendant  is 
sufficient  proof  of  assignment  to 
plaintiff.  Carpenter  v.  Historical 
Pub.  Co.  (Tex.  Civ.  App.),  24  S.  W. 
Rep.  685. 

Assignees  of  a  patent  are  not 
required  to  annex  a  copy  of  the 
assignment  to  the  complaint;  the 
allegation  of  assignment  is  suffi- 


ACTIONS   BY   AND   AGAINST  ASSIGNEES 


ment  after  suit  is  brought  is  insufficient.2  If  a  written 
assignment  produced  bear  date  before  the  commencement 
of  the  action,  the  date  is  presumptive  evidence  that  it  was 
then  made;  but  if  it  bear  no  date,  some  evidence  should  be 
given  indicating  that  it  was  in  fact  made  before  the  action 
was  commenced.3 


cient.  Thayer  v.  Pressey,  175 
Mass.  225,  56  N.  E.  Rep.  5. 

Under  an  allegation  of  assign- 
ment by  "E.  G.  Church  &  Co." 
plaintiff  was  not  allowed  to  prove 
assignment  by  E.  G.  Church,  alone. 
Kibler  ».  Brown,  114  Fed.  Rep. 
1014. 

Under  an  allegation  of  an  as- 
signment by  a  corporation,  an 
assignment  by  the  receivers  of 
such  corporation  may  be  proved. 
Toplitz  v.  King  Bridge  Co.,  20 
N.  Y.  Misc.  576,  46  N.  Y.  Supp. 
418. 

An  allegation  by  plaintiff  of  an 
assignment  by  an  executor  is  suf- 
ficient without  allegation  of  exec- 
utor's authority  from  the  probate 
court  to  make  the  assignment. 
Keen  v.  Brooks,  19  Colo.  App.  165, 
73  Pac.  Rep.  1092. 

It  is  not  necessary  to  allege  that 
the  assignor  sues  for  the  use  of  the 
assignee,  in  an  action  by  the  as- 
signor of  a  chose  in  action.  Bent- 
ley  v.  Standard  Fire  Ins.  Co.,  40 
W.  Va.  729,  23  S.  E.  Rep.  584. 

2  Garrigue  v.  Loescher,  3  Bosw. 
578.  Ratification  of  an  unauthor- 
ized assignment  of  a  cause  of 
action  made  after  suit  is  brought 
will  not  relate  back  to  the  date  of 
such  assignment,  and  thereby  sup- 
port the  action.  Read  v.  Buffum, 
79  Cal.  77,  12  Am.  St.  Rep.  131, 


21  Pac.  Rep.  555.  But  variance 
in  the  mode  of  assignment  is  dis- 
regarded, if  not  prejudicial.  Bow- 
man v.  Keleman,  65  N.  Y.  598. 

Demurrer  will  lie  where  suit  is 
brought  on  a  non-assignable  claim. 
Wilson  v.  Shrader  (W.  Va.).  79  S.  E. 
Rep.  1083. 

8  Barrick  v.  Austin,  21  Barb.  241. 
Compare  paragraph  35  below. 

If  the  complaint  contains  an 
allegation  of  assignment  it  need 
not  set  forth  the  date  of  such  as- 
signment, nor  expressly  state  that 
a  cause  of  action  for  its  breach  had 
accrued  at  the  time  of  the  assign- 
ment, in  order  to  defeat  a  demurrer. 
Buffalo  Tin  Can  Co.  v.  Bliss  Co., 
118  Fed.  Rep.  106. 

Where  the  date  of  assignment  is 
not  stated  in  the  complaint,  a 
motion  to  make  the  complaint  def- 
inite and  certain  by  stating  the 
date  is  proper.  Worden  v.  Ranger, 
136  N.  Y.  App.  Div.  936, 121  N.  Y. 
Supp.  271. 

The  proper  way  to  prove  as- 
signment is  to  produce  the  assign- 
ment and  prove  its  execution. 
Hartley  v.  Cataract  Steam  Engine 
Co.,  64  Hun  (N.  Y.),  634,  mem., 
19  N.  Y.  Supp.  121. 

An  undated  assignment  of  an 
agreement  signed  after  suit  on  the 
agreement  has  been  begun  cannot 
be  admitted  in  evidence.  Liberty 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


3.  Requisite  Proof  of  Assignment. 

If  no  writing  passed,  the  assignment  of  a  debt  may  be 
proved  by  parol,4  even  though  there  was  an  agreement  un- 


Wall  Paper  Co.  v.  Stoner  Wall 
Paper  Co.,  178  N.  Y.  219,  70  N.  E. 
Rep.  501. 

4  Hooker  v.  Eagle  Bank,  30  N.  Y. 
83. 

A  chose  in  action  may  be  as- 
assigned  orally  and  is  it  not  neces- 
sary that  there  be  written  evidence 
of  such  assignment.  Hyatt  v. 
Foster,  195  111.  App.  428. 

A  chose  in  action  arising  out  of 
contract  is  assignable  by  parol 
and  the  assignee  may  sue  thereon 
in  his  own  name.  Jemison  v. 
Tindall,  89  N.  J.  L.  429,  99  Atl. 
Rep.  408. 

An  oral  assignment  of  a  chose  in 
action  not  capable  of  manual  de- 
livery is  sufficient  if  there  is  a  con- 
sideration and  a  constructive  de- 
livery. Howe  v.  Howe,  97  Me. 
422,  54  Atl.  Rep.  908. 

An  assignment  of  a  debt  may' 
be  by  parol  and  may  be  inferred 
from  the  acts  and  conduct  of  the 
party.  Forsyth  v.  Ryan,  17  Colo. 
App.  511,  68  Pac.  Rep.  1055. 

But  in  order  to  recover,  the 
plaintiff  must  show  that  the  parol 
assignment  was  completed.  A  mere 
parol  promise  to  transfer  when  cer- 
tain things  should  transpire  would 
not  give  the  plaintiff  a  right  against 
the  debtor.  Seymour  v.  Aultman, 
109  la.  297,  80  N.  W.  Rep.  401. 

In  an  action  by  an  alleged  as- 
signee through  a  written  assign- 
ment, parol  evidence  of  the  as- 
signor in  regard  to  the  assignment 


should  be  excluded.  Robbins  v. 
Bank  of  M.  &  L.  Jarmulowsky, 
90  N.  Y.  Supp.  288.  See  para- 
graph 16  below. 

A  parol  assignment  of  a  claim 
for  the  recovery  of  wagers  in  the 
hands  of  a  stakeholder  is  valid. 
But  the  mere  testimony  by  the 
assignor  that  he  assigned  the  claim 
to  the  plaintiff  is  not  proof  that 
the  plaintiff  is  the  owner  of  the 
claim.  The  plaintiff  may  have 
assigned  it  since  he  purchased  it. 
Proof  of  ownership  in  the  plaintiff 
at  the  time  of  the  action  is  essen- 
tial. Bernstein  v.  Horth,  85  N.  Y. 
Supp.  263. 

Oral  assignment  of  threshing 
machine  profits  to  the  vendor  as 
payment  for  the  machine  held 
good.  Hurley  v.  Bendel,  67  Minn. 
41,  69  N.  W.  Rep.  477. 

An  agreement  to  assign  in  the 
future,  or  a  parol  promise  to  trans- 
fer when  certain  things  should 
transpire,  will  not  give  the  intended 
assignee  a  right  of  action.  A 
verbal  agreement  to  turn  over  and 
deliver  certificates  when  they  are 
issued  in  the  future  cannot  be 
enforced  in  a  court  of  law. 

If  the  assignment  was  not  in 
writing,  a  completed  parol  assign- 
ment must  be  shown.  Seymour  v. 
C.  Aultman  &  Co.,  109  Iowa,  297, 
80  N.  W.  Rep.  401. 

Parol  evidence  will  be  admitted 
to  prove  assignment  of  a. chose  in 
action.  Standifer  v.  Bond  Hard- 


8 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


performed  to  give  a  written  transfer.5  It  is  sufficient  proof 
of  a  parol  assignment  that  some  evidence  of  the  debt — such 
as  a  bond  or  mortgage,6  or  a  transcript  of  judgment,7  or  a 


ware  Co.  (Tex.  Civ.  App.),  94  S. 
W.  Rep.  144. 

'Doremus  v.  Williams,  4  Hun, 
458. 

A  minor,  living  with,  and  sup- 
ported by,  his  father  cannot  legally 
assign  his  wages.  Written  agree- 
ment to  that  effect  held  void. 
Lockerby  v.  O'Gara  Coal  Co., 
147  111."  App.  311. 

A  verbal  assignment  of  an  open 
account  in  coasideration  of  future 
credit  and  merchandise  sold  and 
delivered  is  a  good  equitable  as- 
signment, although  not  afterward 
reduced  to  writing  as  promised. 
Kenneweg  v.  Schilansky,  45  W.  Va. 
521, 31  S.  E.  Rep.  949. 

For  considerations  of  public 
policy,  a  public  official  is  not  per- 
mitted to  make  an  assignment  of 
his  wages  or  salary  until  the  time 
arrives  when  he  is  entitled  to  col- 
lect them,  or  at  least  until  they 
have  been  completely  earned. 
Trow  v.  Moody,  27  Cal.  App.  403, 
150  Pac.  Rep.  77. 

An  assignment  of  moneys  to  be 
collected  is  valid  and  takes  effect 
upon  the  fund  or  property  when 
collected  or  received.  Hoffer- 
berth  v.  Duckett,  175  App.  Div. 
498,  162  N.  Y.  Supp.  167. 

An  assignment  of  wages  exe- 
cuted prior  to  the  time  a  person 
obtains  employment  is  void  as 
to  wages  earned  under  such  em- 
ployment. Draeger  v.  Wisconsin 
Steel  Co.,  194  111.  App.  440. 

In    Wisconsin    the    statute    in- 


hibits the  assignment  of  wages  for 
more  than  sixty  days  and  of  all 
exempt  wages  unless  the  assignor's 
wife  joins  in  the  contract  of  assign- 
ment. Porte  v.  Chicago  &  N.  W. 
Ry.  Co.,  162  Wis.  446,  156  N.  W. 
469. 

The  law  recognizes  no  assign- 
ment of  future  earnings  unless 
such  earnings  are  based  on  an 
existing  contract  of  employment. 
Porte  v.  Chicago  &  N.  W.  Ry.  Co., 
162  Wis.  446,  156  N.  W.  469; 
First  National  Bank  of  Houston  v. 
Campbell  (Tex.  Civ.  App.),  193 
S.  W.  197. 

6  Runyan  v,  Mersereau,  11  Johns. 
534;  and  see  17  Ida.  284;  Kamend  v. 
Huelig,  12  Am.  Law  Reg.  N.  S.  61. 

A  good  assignment  of  a  mortgage 
is  made  by  delivery  only.  Curtis 
v.  Moore,  152  N.  Y.  159,  46  N.  E. 
168,  57  Am.  St.  Rep.  506;  Fryer 
v.  Rockefeller,  63  N.  Y.  268. 

Assignment  of  a  mortgage  is 
shown  by  offering  the  mortgage  in 
evidence.  Burgwyn  Bros.  Tobacco 
Co.  v.  Bentley,  90  Ga.  508,  16  S.  E. 
Rep.  216. 

The  mortgage  is  admissible  in 
evidence  as  proof  of  its  assign- 
ment. Trulock  v.  Donahue,  85 
Iowa,  748,  52  N.  W.  Rep.  537. 

7  Mack  v.  Mack,  3  Hun,  323. 

See  Greene  v.  Republic  Fire  In- 
surance Co.,  84  N.  Y.  572,  as  to 
ownership  of  a  judgment  obtained 
by  assignee  of  a  policy  which  was 
assigned  by  parol  and  a  delivery. 

An  assignment  of  a  contract  by 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


note  held  for  the  debt,  or  part  of  it — 8  was  delivered  to  the 
assignee  by  the  assignor,  with  intent  to  transfer  the  title  to 
the  demand;  and  the  declarations  of  the  assignor  accom- 
panying the  delivery  may  be  proved  by  a  witness  as  part 
of  the  res  gestce.  '  It  is  not  essential  to  call  the  assignor.  But, 
on  the  other  hand,  neither  the  mere  production  of  a  non- 
negotiable  security,9  nor  proof  of  mere  words  of  intention 


parol  is  sufficient  to  transfer  the 
same.  Liberty  Wall  Paper  Co.  v. 
Stoner  Wall  Paper  Co.,  59  N.  Y. 
App.  Div.  353,  69  N.  Y.  Supp.  355, 
Re  Rogers  Construction  Co.,  79 
N.  Y.  App.  Div.  419,  79  N.  Y. 
Supp.  444. 

An  insurance  policy,  being  a 
chose  in  action,  can  be  assigned  by 
parol  and  a  delivery,  where  there 
is  a  valuable  consideration.  Lein- 
kauf  v.  Caiman,  110  N.  Y.  50,  17 
N.  E.  Rep.  389. 

Mere  possession  of  school  war- 
rants by  plaintiff  is  not  enough  to 
show  ownership.  School  District 
No.  7  v.  Reeve,  56  Ark.  68,  19 
S.  W.  Rep.  106. 

Transcript  from  City  Comp- 
troller's book  showing  city  cer- 
tificates listed  in  name  of  a  trans- 
feree is  not  proof  of  title  in  such 
transferee.  Wadsworth  v.  New  Or- 
leans, 46  La.  Ann.  545, 15  So.  Rep. 
202. 

The  assignee  of  a  non-negotiable 
chose  in  action  cannot  maintain  an 
action  in  his  own  name  unless  the 
assignment  be  in  writing.  New 
England  Cabinet  Works  v.  Mor- 
ris (Mass.),  115  N.  E.  Rep. 
315. 

8  Armstrong  v.  Cushney,  43  Barb. 
340;  Billings  v.  Jane,  11  Ida.  620. 
For  the  more  strict  common-law 


rule  see  Palmer  v.  Merrill,  6  Gush. 
282. 

<>  Barrick  v.  Austin,  21  Barb.  241. 

The  mere  possession  of  a  policy 
of  life  insurance  together  with 
proof  that  the  insured  and  bene- 
ficiary were  indebted  to  the  holder 
thereof,  does  not  in  any  way  estab- 
lish that  the  policy  was  pledged 
or  assigned  to  secure  such  indebt- 
edness. Richardson  v.  Moffitt- 
West  Drug  Co.,  92  Mo.  App.  515, 
69  S.  W.  Rep.  398. 

The  assignment  of  a  chose  in 
action  will  be  held  sufficient  where 
the  assignor  testifies  that  he  in- 
tended to  transfer  his  title  thereto, 
as  he  is  thereby  estopped  from 
claiming  differently,  and  the  debtor 
is  protected  from  a  subsequent 
action  by  the  assignor.  Crocker  v. 
Muller,  40  N.  Y.  Misc.  685,  83 
N.  Y.  Supp.  189. 

Mere  evidence  of  intention  by 
partners  to  assign  their  assets  to  a 
corporation  does  not  show  that 
any  legal  title  ever  vested  in  the 
corporation,  unless  such  intention 
was  coasummated.  Werner  v. 
Finley,  144  Mo.  App.  554,  129 
S.  W.  Rep.  73. 

Assignment  of  a  chose  in  action 
is  sufficiently  shown  where  the  as- 
signor testifies  that  he  intended  to 
transfer  his  title  thereto.  Crocker 


10 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


on  the  part  of  the  alleged  assignor,  are  enough.  Nor  can  the 
plaintiff  prove  his  title  by  mere  evidence  of  oral  declarations 
of  the  assignor,  that  he  had  at  a  previous  time  assigned  the 
demand  to  the  plaintiff, 10  unless  such  declarations  were  made 
in  the  defendant's  presence,  in  which  case  they  may  be  proved 
as  laying  a  foundation  for  his  admission  of  an  assignment,  or 
for  a  presumption  thereof  from  his  silence. 

4.  Implied  Assignment. 

In  some  cases  where  there  was  no  express  assignment,  the 
court  will,  upon  equitable  grounds,  presume  an  assignment 
from  the  fact  that  the  plaintiff,  being  entitled  to  relief,  and 
with  intent  to  enforce  the  claim  for  his  own  reimbursement, 
paid  the  one  who  was  legally  entitled.11  And  in  case  of 
negotiable  paper  "taken  up,"  even  by  a  stranger,  at  ma- 


v.  Muller,  40  N.  Y.  Misc.  685,  83 
N.  Y.  Supp.  189. 

10  Worrall  v.  Parmelee,  1  N.  Y. 
521. 

The  assignment  of  a  cause  of  ac- 
tion on  an  open  account  by  a 
former  plaintiff  may  be  proved  by 
oral  evidence  as  well  as  by  a  written 
instrument;  if  it  is  in  writing, 
however,  oral  testimony  will  be 
rejected.  The  written  assignment 
of  a  cause  of  action  on  an  open 
account  by  a  former  plaintiff  does 
not  belong  to  that  class  of  docu- 
ments which  under  article  313  of 
the  Texas  Revised  Statutes  of  1S95 
prove  themselves.  Some  evidence 
must  be  given  of  its  execution. 
Standifer  v.  Bond  Hardware  Co. 
(Tex.  Civ.  App.),  94  S.  W.  Rep. 
144. 

The  mere  use  of  the  terms  "as- 
signs" and  "heirs"  does  not  make 
an  unexecuted  personal  contract 
assignable.  Central  Brass  & 
Stamping  Co.  r.  Stuber,  220 


Fed.  Rep.  909,  136  C.  C.  A. 
475. 

An  action  brought  by  and  in 
the  name  of  the  assignee  who  is 
not  the  proper  legal  plaintiff  can- 
not be  maintained  even  though  the 
fact  of  the  assignment  is  admitted. 
Shaffer  v.  Federal  Cement  Co., 
225  Fed.  Rep.  893. 

"See  O'Neil  v.  N.  Y.  Central 
R.  R.  Co.  above;  Smith  v.  Miller, 
25  N.  Y.  619;  Vail  v.  Tuthill,  10 
Hun,  31. 

An  agreement  to  pay  a  debt  out 
of  a  certain  fund  does  not  operate 
as  an  equitable  assignment  of  the 
whole  or  any  part  of  it.  Provine  v. 
First  National  Bank  (Tex.  Civ. 
App.),  180  S.  W.  Rep.  1107. 

A  mere  agreement  to  pay  out 
of  a  fund  is  not  sufficient  to  create 
a  specific  equitable  lien  on  the 
fund  for  the  payment  of  the  debt 
involved.  Title  Guaranty  &  Surety 
Co.  v.  State,  61  Ind.  App.  268,  109 
N.  E.  Rep.  237. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


11 


turity,  on  dishonor,  an  assignment  has  been  implied  from 
its  delivery  to  him  uncanceled.  In  this  class  of  cases,  the 
question  whether  paying  the  creditor  was  a  satisfaction  of 
the  demand  or  a  purchase,  is  ordinarily  a  question  of  inten- 
tion of  the  parties,  which  may  be  proved  by  parol.12  But 
the  plaintiff  should  be  prepared  not  only  to  show  that  it 
was  his  intent  to  acquire  the  right  of  action,  but  to  give 
some  evidence  that  it  was  the  intent  of  the  creditor  to  trans- 
fer it  to  him.  The  creditor's  delivery  to  him  of  the  evidence 
of  debt,  uncanceled,  is  ordinarily  sufficient  to  sustain  a 
finding  on  this  point,  as  against  the  debtor.13  But  where 
the  payer  was  bound  under  seal  or  by  judgment  to  pay  the 
debt,  his  action  must  ordinarily  be  for  money  paid.14 

5.  Statute  of  Frauds. 

When  no  consideration  for  the  assignment  is  shown,  and 
no  delivery,  the  assignment,  if  for  the  price  of  $50,  or  more,15 


12  Compare  Champney  v .  Coope, 
32  N.  Y.  543;  Sheldon  v.  Edwards, 
35   N.   Y.   279,   and   cases   cited; 
Edgerly  v.  Emerson,  23  N.  H.  555, 
565,  570,  55  Am.  Dec.  207;  and 
chapter    on   Actions    for   Money 
Paid. 

See  also  Houseman  v.  Bodine, 
122  N.  Y.  158,  25  N.  E.  Rep.  255; 
Wadsworth  v.  Lyon,  93  N.  Y.  201, 
45  Am.  Rep.  190;  McFadden  v. 
Allen,  134  N.  Y.  489,  32  N.  E. 
Rep.  21,  19  L.  R.  A.  446;  Curtis  v. 
Moore,  152  N.  Y.  159,  46  N.  E. 
Rep.  168,  57  Am.  St.  Rep.  506. 

13  Compare  Freedman's  Savings, 
etc.,  Co.  t>.  Dodge,  93  U.  S.  382; 
Union  Trust  Co.  v.  Monticello,  63 
N.  Y.  314;  Lancey  v.  Clark,  64  Ida. 
209;  Shumway  v.  Cooley,  9  Hun, 
131. 

The  failure  of  the  plaintiff  or  his 
assignor  to  obtain  the  consent  of 


the  owner  prior  to  the  assignment 
of  a  building  contract  which  pro- 
vides that  the  contractor  shall  not 
assign  the  same  without  the  con- 
sent of  its  owner,  is  fatal  to  the 
plaintiff's  right  of  recovery.  Reisler 
v.  Cohen,  67  N.  Y.  Misc.  67,  121 
N.  Y.  Supp.  603. 

An  order  given  as  security  for  a 
present  indebtedness  operates  as 
an  assignment.  An  assignment  is 
not  the  less  an  assignment  of  a 
present  indebtedness  even  if  it  is 
qualified  by  some  condition,  con- 
tingency or  limitation  depending 
upon  the  happening  of  a  future 
event.  O'Connell  v.  Worcester, 
225  Mass.  159, 114  N.  E.  Rep.  201. 

14  Champney  v.  Coope,  Sheldon 
v.  Edwards,  above. 

15  N.  Y.  Personal  Property  Law, 
§  85,  as  added  by  L.  1911,  c.  571; 
People  v.  Beebe,  1  Barb.  379. 


12 


ACTIONS  BY  AND  AGAINST  ASSIGNEES 


or  when  no  price  was  fixed,  if  of  a  chose  in  action  clearly 
proven  to  be  worth  that  sum,16  must  have  been  evidenced 
by  a  note  or  memorandum  in  writing.  But  a  written  as- 
signment, unless  involving  an  interest  in  land,17  need  not 
be  under  seal,  even  though  the  thing  assigned  be  a  specialty.18 

6.  Presumptive  Evidence. 

Direct  proof  of  an  assignment  is  not  always  essential.  The 
title  to  an  incidental  or  collateral  security  which  is  exclusively 
applicable  to  the  principal  debt  or  obligation,  is  presumed 
to  have  been  assigned  with  the  principal  debt  or  obligation, 
unless  the  contrary  is  shown;  hence  an  assignment  of  the 
collateral  may  be  presumptively  shown  by  proof  of  an 
assignment  of  the  principal  obligation.19  But  an  assignment 


18  Buskirk  v.  Cleveland,  41  Barb. 
610;  Crookshank  v.  Burrell,  18 
Jdhns.  58,  9  Am.  Div.  187,  Contra, 
Duncuft  v.  Albrecht,  12  Sim.  189, 
35  Eng.  Ch.  162,  59  Reprint,  1104; 
Johns  v.  Johns,  1  Ohio  St.  350.  An 
oral  assignment  of  ten  shares  of 
stock  worth  &900  was  held  un- 
enforcible  against  the  assignor. 
Orr  v.  Hall,  75  Nebr.  548,  106  N. 
W.  Rep.  656. 

17  Other  than  a  lease  not  exceed- 
ing one  year.    N.  Y.  Real  Property 
Law,  §  242,  §§  6,  7;  Bissell  v.  Mor- 
gan,  56   Barb.   369.     An   assign- 
ment of  a  lease  for  a  term  of  years 
need  not  be  acknowledged.    Ameri- 
can  Savings   Bank   &   T.   Co.   v. 
Mafridge,  60  Wash.  180,  110  Pac. 
Rep.  1015. 

18  E.  g.,  a  judgment.     Ford  v. 
Stuart,  19  Johns.  342.     Or  a  bond 
or  covenant.    Morange  v.  Edwards, 
1  E.  D.  Smith,  414;  Dawson  v. 
Coles,  16  Johns.  51;  Greene  v.  Re- 
public Fire  Ins.  Co.,  84  N.  Y.  572. 
Or  an  insurance  policy.    Leinkauf 


v.  Caiman,  110  N.  Y.  50,  17  N.  E. 
Rep.  389.  Or  a  contract.  Liberty 
Wall  Paper  Co.  v.  Stoner  Wall 
Paper  Co.,  59  N.  Y.  App.  Div.  353, 
69  N.  Y.  Supp.  355;  Re  Rogers  Con- 
struction Co.,  79  N.  Y.  App.  Div. 
419,  79  N.  Y.  Supp.  444. 

19  Thus,  an  assignment  of  the 
mortgage  may  be  presumed  from 
proof  of  an  assignment  of  the  bond 
or  note.  Jackson  v.  Blodgett,  5 
Cow.  202;  Green  v.  Hart,  1  Johns. 
580;  and  assignment  of  a  guaranty 
of  a  bond  and  mortgage  may  be 
presumed  from  the  assignment  of 
the  bond  and  mortgage  by  the 
guarantee.  Cady  v.  Sheldon,  38 
Barb.  103;  and  see  40  N.  Y.  181. 
So  the  assignment  of  a  judgment 
carries  the  right  to  any  further 
remedy  subsisting  for  the  debt  on 
which  the  judgment  was  recovered. 
Pattison  v.  Hull,  9  Cow.  747;  Bow- 
doin  v.  Coleman,  3  Abb.  Pr.  431, 
s.  c.  6  Duer,  182. 

Where  a  warehouse  corporation 
hrts  an  equitable  lien  upon  cer- 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


13 


of  the  principal  obligation  cannot  be  inferred  from  the  mere 
fact  of  an  assignment  of  a  collateral  security  or  other  in- 
cident.20 Since  the  change  in  the  law  allowing  assignees  to 
sue  in  their  own  names,  it  has  been  much  questioned  whether 
an  assignment  of  property  or  things  in  action  will  carry,  by 
implication,  incidental  causes  of  action  for  fraud,  mistake 
and  the  like,  which  cannot  subsist  independent  of  the  prin- 
cipal right.  At  first  these  were  thought  not  to  pass  unless 
expressly  included;  but  the  better  opinion  is  that  the  ques- 
tion is  usually  one  of  intent,  and  that  an  assignment  of  a 
thing  in  action  may  carry  the  right  to  those  remedies  in- 
separable from  it  which  might  have  been  expressly  assigned.21 


tain  goods  in  its  possession  for 
money  advanced  to  its  debtor, 
such  equitable  lien  is  impliedly  as- 
signed when  the  corporation  be- 
comes insolvent  and  assigns  all  its 
assets.  Cincinnati  Tobacco  Ware- 
house Co.  v.  Leslie,  117  Ky.  478, 
78  S.  W.  Rep.  413,  64  L.  R.  A.  219. 

20  Thus,  Latent  to  transfer  the 
bond  cannot  be  inferred  from  an 
assignment  of  the  mortgage  alone. 
Merritt  v.  Bartholick,  36  N.  Y.  44, 
affi'g  47  Barb.  253,  s.  P.,  26  N.  Y. 
404;  Syracuse  Sav.  Bank  v.  Mer- 
rick,  182  N.  Y.  387,  75  N.  E.  Rep. 
232. 

An  order  drawn  on  a  specific 
fund  may  operate  as  an  assignment 
of  such  fund,  but  the  burden  is 
upon  the  assignee  to  prove  that 
the  intention  had  been  to  assign 
to  him  and  that  the  assignor  parted 
with  control  over  the  fund.  Wake- 
field,  Fries  &  Co.  v.  Parkhurst,  84 
Ore.  483,  165  Pac.  Rep.  578. 
t  A  check  is  not  the  assignment  of 
the  fund  on  deposit  to  the  credit  of 
the  drawer  pro'  tanto,  and  the 
holder  is  merely  the  agent  of  the 


drawer  for  the  purpose  of  collecting 
it.  Chrzanowska  v.  Corn  Exchange 
Bank,  173  App.  Div.  285, 159  N.  Y. 
Supp.  385. 

^To  the  same  effect,  see  Talla- 
poosa  Co.  Bank  v.  Salmon,  12 
Ala.  App.  589,  68  So.  Rep.  542. 

As  against  the  drawer,  the  giving 
of  a  check  for  value  on  an  ordinary 
bank  deposit  should  be.  considered 
as  an  assignment  of  the  fund  pro 
tanto.  Elgin  v.  Gross-Kelly  &  Co., 
20  N.  M.  450,  150  Pac.  Rep.  922, 
L.  R.  A.  1916  A.  711. 

21  Bentley  v.  Smith,  1  Abb.  Ct. 
App.  Dec.  126;  Bolen  v.  Crosby, 
49  N.  Y.  183.  Thus,  it  has  been 
held  that  where  a  right  arising  out 
of  contract  involves  a  remedy  for 
fraud  or  deceit,  the  right  to  prove 
the  tort  follows  the  original  cause 
of  action,  and  vests  in  the  assignee. 
Westcott  v.  Keeler,  4  Bosw.  564. 

See  as  to  loss  of  wife's  inchoate 
right  of  dower  through  fraud  in- 
ducing a  conveyance,  Simar  v. 
Canaday,  53  N.  Y.  298,  13  Am. 
Rep.  523. 

So  the  right  of  a  cestui  que  trust 


14 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


7.  Consideration. 

For  the  purpose  of  enabling  the  assignee  to  maintain  an 
action  against  the  debtor,  proof  of  a  consideration  for  the 

to  enforce  a  power  has  been  held, 
on  a  view  of  the  design  and  intent, 
to  pass  by  his  deed  of  the  title. 
Clark  v.  Crego,  47  Barb.  599.  So 
the  assignment  of  a  usurious  se- 
curity earnest  the  right  of  action 
on  the  original  valid  consideration. 
Gerwig  v.  Sitterly,  56  N.  Y.  214, 
affi'g  in  effect  64  Barb.  620.  So 
of  the  right  to  have  a  contract 
reformed  for  mistake.  Bentley  v. 
Smith,  above.  As  to  new  prom- 
ise, compare  Stearns  v.  Tappin,  5 
Duer,  294;  Hoyt  ».  Dusenbury, 
53  N.  Y.  521. 

An  assignment  by  a  customer  off 
his  right,  title  and  interest  in  stock 
converted  vests  in  the  assignee  the 
right  of  action  for  the  conversion 
of  the  stock,  although  it  makes  no 
mention  of  the  right  of  action. 
Rothschild  v.  Allen,  90  N.  Y.  App. 
Div.  233,  86  N.  Y.  Supp.  42,  af- 
firmed in  180  N.  Y.  561,  73  N.  E. 
Rep.  1132. 

The  legal  title  to  shares  of  stock 
held  by  an  executor  will  be  trans- 
ferred by  a  written  assignment 
thereof,  signed  by  him  simply  with 
his  individual  name,  and  such  as- 
signment carries  with  it  a  right  of 
action  for  the  conversion  of  the 
stock.  Mahaney  v.  Walsh,  16  N.  Y. 
App.  Div.  601,  44  N.  Y.  Supp.  969. 

The  assignee  of  a  contract  of 
guaranty  or  any  chose  in  action 
is  the  real  party  in  interest  and 
may  sue  in  his  own  name  under 
Cal.  Code  Civ.  Pro.,  §§367,  368, 
Cal.  Civ.  Code,  §§  953,  954,  1458, 


1459.  Reios  v.  Mardis,  18  Cal. 
App.  276,  122  Pac.  Rep.  1091; 
Milliken-Helm  Commn.  Co.  v.  C. 
H.  Albers  Commn.  Co.,  244  Mo. 
38,  147  S.  W.  Rep.  1065. 

While  the  law  of  Illinois  permits 
the  prosecution  in  his  own  name  by 
an  assignee  of  a  non-negotiable 
chose  in  action,  he  is  not  precluded 
from  bringing  the  action  in  the 
name  of  the  assignor.  Surface  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  191 
111.  App.  261. 

The  assignee  of  a  contract  is 
the  real  party  in  interest  and  may 
sue  in  his  own  name  under  Mo. 
R.  S.  1909,  §  1729. 

In  North  Carolina,  as  every  ac- 
tion must  be  prosecuted  in  the 
name  of  the  real  party  in  interest, 
the  assignee  of  a  chose  in  action 
must  sue  in  his  own  name,  and  not 
in  the  name  of  the  assignor. 
Vaughn  v.  Davenport,  159  N.  C. 
369,  74  S.  E.  Rep.  967. 

Where  the  assignment  gives  the 
right  to  sue  in  the  name  of  the  as- 
signor the  assignee  may  do  so. 
Salt  Fork  Coal  Co.  v.  Eldridge  Co., 
170  111.  App.  268. 

The  assignee  of  part  of  a  cause  of 
action  pending  an  appeal  has  the 
right  to  prosecute  the  claim  to  final 
judgment  in  the  name  of  the  as- 
signor, inasmuch  as  all  right  and 
opportunity  to  make  himself  a 
party  is  gone  when  the  cause  has. 
reached  the  appellate  court.  Seiter 
v.  Smith,  105  Tex.  205,  147  S.  W. 
Rep.  226. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


15 


assignment  is  not  essential  (unless  the  statute  of  frauds 
requires  it),  for  an  absolute  assignment  transfers  the  legal 
title.22  The  consideration,  however,  may  be  material  in 


An  agreement,  made  in  consider- 
ation of  a  loan,  to  pay  over  all 
rents  derived  from  various  prop- 
erties, less  costs  of  repairs,  ex- 
penses, etc.,  is  not  an  assignment. 
It  is  a  mere  promise  to  pay.  In  re 
Clark  Realty  Co.,  234  Fed.  Rep. 
576, 148  C.  C.  A.  342. 

22  Cummings  v.  Morris,  25  N.  Y. 
625;  Guy  v.  Craighead,  N.  Y.  6 
App.  Div.  463.  Whether  the  action 
is  on  contract.  St.  John  v.  Mutual 
Life  Ins.  Co.,  13  N.  Y.  31;  or  for  a 
wrong.  Merrick  v.  Brainard,  38 
Barb.  574,  34  N.  Y.  208. 

The  assignment  of  a  claim  car- 
ries with  it  the  right  to  maintain 
the  action  irrespective  of  the  ques- 
tion of  the  consideration  for  such 
assignment.  Rosenthal  v.  Rudnick, 
65  N.  Y.  App.  Div.  519,  72  N.  Y. 
Supp.  804;  Forsyth  v.  Ryan,  17 
Colo.  App.  511,  68  Pac.  Rep.  1055; 
Robinson  Reduction  Co.  v.  John- 
son, 10  Colo.  App.  135,  50  Pac. 
Rep.  215. 

An  assignment  of  a  judgment 
under  seal  imports  a  consideration. 
But  any  evidence  which  impeaches 
the  bona  fides  of  the  transaction  will 
put  the  assignee  to  full  proof  of  the 
consideration.  Rettig  v.  Becker, 
11  Pa.  Super.  Ct.  395. 

The  defendant  will  not  be  per- 
mitted to  enter  into  the  question 
whether  the  assignee  paid  a  con- 
sideration for  his  transfer  of  a  claim 
from  the  assignor.  Toplitz  v.  King 
Bridge  Co.,  20  N.  Y.  Misc.  576, 
46  N.  Y.  Supp.  418;  Chamberlain 


v.  Fernbach,  118  111.  App.  145; 
Wallace  v.  Leroy,  57  W.  Va.  263, 
50  S.  E.  Rep.  ^243,  110  Am.  St. 
Rep.  777;  Hicks  v.  Steel,  126 
Mich.  408,  85  N.  W.  Rep.  1121. 

A  consideration  for  a  deed  is 
presumed  and  the  burden  of  proof 
is  upon  the  party  assailing  it  to 
show  lack  of  consideration.  In  the 
absence  of  fraud,  the  amount  of 
consideration  is  immaterial,  and 
no  specific  consideration  is  re- 
quired to  support  a  voluntary 
transfer.  Driscoll  v.  Driscoll,  143 
Cal.  528,  77  Pac.  Rep.  471. 

Want  of  consideration  is  a  good 
defense  in  an  action  brought  by  an 
assignee  to  foreclose  a  mortgage, 
espeeialty  so  where  the  assignee 
fails  to  prove  that  he  is  a  bona  fide 
assignee.  Hill  v.  Hoole,  116  N.  Y. 
299,  22  N.  E.  Rep.  547,  5  L.  R.  A. 
620. 

The  assignee  of  a  mortgage  takes 
it  subject  to  the  legal  and  equitable 
defenses  available  to  the  mortgagor 
at  the  time  of  the  assignment,  and 
therefore  want  of  consideration 
might  be  a  defense  to  the  action 
of  the  assignee  for  foreclosure. 
Schlitz  v.  Koch,  138  N.  Y.  App. 
Div.  535,  123  N.  Y.  Supp.  302. 

Proof  of  consideration  is  not  es- 
sential. Henderson  National  Bank 
v.  Lagow,  3  Ky.  L.  173;  Robinson 
Reduction  Co.  v.  Johnson,  10  Colo. 
App.  135, 50  Pac.  Rep.  215;  Norton 
v.  McCarthy,  10  N.  Y.  Misc.  222, 
30  N.  Y.  Supp.  1057. 

Consideration   is   immaterial   if 


16 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


respect  to  defenses.  If  a  consideration  is  not  expressed, 
where  the  assignment  is  in  writing,  it  will  be  presumed.23 
Indeed,  it  is  no  longer  necessary  in  all  cases  to  prove  such 
an  assignment  as  passes  the  legal  title,  in  order  to  enable 
the  assignee  to  sue  in  his  own  name.  Whether  his  title  be 
legal  or  equitable,  if  he  have  the  whole  interest  he  may 
maintain  the  action.24  But  the  defendant  may  prove  that 


the  assignment  is  sufficient  to  pass 
title.  Guy  v.  Craighead,  6  N.  Y. 
App.  Div.  463,  39  N.  Y.  Supp.  688. 

Proof  that  plaintiff  paid  nothing 
for  the  assignment  of  a  contract 
will  be  rejected  as  immaterial. 
Wardner,  etc.,  Co.  v.  Jack,  82 
Iowa,  435,  48  N.  W.  Rep.  729. 

If  the  rights  of  creditors  are  af- 
fected the  amount  and  kind  of 
consideration  for  an  assignment 
are  material.  Barnett  v.  Ellis, 
34  Neb.  539,  52  N.  W.  Rep.  368. 

To  constitute  an  equitable  as- 
signment a  valuable  consideration 
is  essential  and  indispensable.  Mof- 
fatt  v.  Bailey,  22  N.  Y.  App.  Div. 
632,  47  N.  Y.  Supp.  983. 

"Eno  v.  Crook,  10  N.  Y.  60; 
Richardson  v.  Mead,  27  Barb.  178. 
Where  the  extinguishment  of  a 
precedent  debt  was  relied  on,  it 
was  held  that  there  must  be  evi- 
dence of  actual  extinguishment.  34 
Barb.  629.  But  doubted;  compare 
56  Id.  362. 

A  seal  is  conclusive  evidence, 
in  the  absence  of  fraud,  of  a  suf- 
ficient consideration.  It  is  not 
necessary  that  an  assignment  shall 
contain  a  recital  in  its  body  that  it 
is  under  seal.  Chamberlain  v.  Fern- 
bach,  118  111.  App.  145. 

A  party  is  not  required  to  rely 
upon  the  presumption  of  considera- 


tion until  rebutted,  but  may  prove 
actual  consideration.  Loftus  v. 
Benjamin,  122  N.  Y.  Supp.  275. 

Consideration  for  an  assignment 
will  be  presumed  under  Cal.  Civ. 
Code,  §§1614,  1615.  Driscoll  v. 
Driscoll,  143  Cal.  528,  77  Pac.  Rep. 
471. 

24  Thus  the  holder  of  a  non- 
negotiable  note  indorsed  in  blank 
may  recover  on  it.  Hastings  ». 
McKinley,  1  E.  D.  Smith,  273, 
aff'd  in  Seld.  Notes,  No.  4,  19. 

Under  the  Statutes  of  Connecti- 
cut, the  assignee  of  a  non-negoti- 
able chose  in  action  cannot  sue  on 
it  in  his  own  name  unless  he  shows 
that  he  is  its  owner  in  his  own  right 
and  for  his  own  benefit,  without 
accountability.  Uncas  Paper  Co. 
v.  Corbin,  75  Conn.  675,  55  Atl. 
Rep.  165. 

Under  the  Rev.  Laws  of  Mass., 
c.  173,  §  4,  the  assignee  cannot  sue 
in  his  own  name  if  the  chose  in 
action  sued  on  has  not  been  as- 
signed in  writing.  Rogers  v. 
Abbot,  206  Mass.  270,  92  N.  E. 
Rep.  472,  138  Am.  St.  Rep.  394. 

In    Illinois,    since    the    Act    of 

July,  1907,  the  assignee  of  a  judg- 

v£  ment  may  sue  thereon  in  his  own 

name.    Thomson  v.  Caverley,  148 

/  111.  App.  295. 

No  informality  which  a  written 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


17 


the  assignee  paid  and  took  assignment  as  trustee  or  agent 
for  one  who  has  no  right  to  enforce  the  claim — for  Distance, 


assignment  itself  discloses  will  jus- 
tify the  court  in  holding,  as  a 
matter  of  law,  that  it  is  not  ade- 
quate for  the  purposes  claimed  by 
the  plaintiff  assignee,  if  the  assign- 
ment vested  in  him  the  real  bene- 
ficial interest  and  gave  him  the 
right  to  maintain  the  action  in  his 
own  name.  Bank  of  New  Haven 
v.  Thorp,  78  Conn.  211,  61  Atl. 
Rep.  428. 

The  party  holding  the  legal  title 
of  a  note  or  instrument  may  sue  on 
it,  though  he  be  an  agent  or  trustee, 
and  liable  to  account  to  another  for 
the  proceeds  of  the  recovery,  but 
he  is  open  in  such  case  to  any  de- 
fense which  exists  against  the  party 
beneficially  interested.  Salmon  v. 
Rural  Independent  School  Dist., 
125  Fed.  Rep.  235. 

In  New  York,  where  a  decree, 
made  upon  the  judicial  settlement 
of  the  accounts  of  an  administra- 
trix, directs  the  payment  of  an 
assigned  claim  to  the  assignor 
thereof,  the  assignee  may,  under 
§  2607  of  N.  Y.  Code  of  Civil  Pro- 
cedure, maintain  an  action  in  his 
own  name  upon  the  official  bond 
of  the  administratrix  to  recover 
the  money.  Bamberger  v.  Amer. 
Surety  Co.,  48  N.  Y.  Misc.  221, 
96  N.  Y.  Supp.  665,  affirmed  in  109 
(N.  Y.)  App.  Div.  917,  96  N.  Y. 
Supp.  665. 

Where  an  action  was  brought  in 
New  York  upon  an  assignment  of 
an  Illinois  judgment,  the  validity 
of  which  was  not  questioned,  the 
assignee  was  the  real  party  in  in- 


terest and  authorized  by  New  York 
Code  of  Civil  Procedure,  §  1909, 
to  bring  the  action  in  his  own  name. 
Waters  v.  Spencer,  44  N.  Y.  Misc. 
15,  89  N.  Y.  Supp.  693. 

An  assignee  under  an  assign- 
ment which  is  valid  against  the 
assignor  is  the  real  party  in  interest 
and  the  proper  party  to  bring  the 
action.  Chase  v.  Dodge,  111  Wis. 
70,  86  N.  W.  Rep.  548. 

The  assignee  of  a  chose  in  action 
may  maintain  suit  thereon  in  his 
own  name  before  a  justice  of  the 
peace.  Forsyth  v.  Ryan,  17  Colo. 
App.  511,  68  Pac.  Rep.  1055. 

Where  the  name  of  the  assignor 
in  the  instrument  assigned  is  ficti- 
tious, the  assignee  may  sue  upon 
it,  irrespective  of  whether  the 
assignor  himself  could  have  sued 
thereon.  Quan  Wye  v.  Chin  Lin 
Hee,  123  Cal.  185,  55  Pac.  Rep. 
783. 

On  grounds  of  public  policy 
the  sale  or  assignment  of  actions 
for  injuries  to  the  person  is  void. 
The  assignee  can  neither  maintain 
the  action  in  his  own  name  nor  in 
the  name  of  the  assignor  for  the 
use  of  the  assignee.  Chicago  Gen. 
Ry.  Co.  v.  Capek,  82  IU.  App.  168. 

A  judgment  which  is  assigned  to 
a  partnership  becomes  an  asset, 
and  if  the  firm  subsequently  takes 
in  a  new  partner  no  further  as- 
signment of  the  judgment  to  the 
new  firm  is  necessary.  Baumert  v. 
Daeschler,  65  N.  Y.  Misc.  526, 
120  N.  Y.  Supp.  957. 

A  right  of  action  against  a  rail- 


18 


ACTIONS  BY  AND  AGAINST  ASSIGNEES 


a  principal  debtor  or  a  joint  debtor.25  The  defendant  can- 
not be  allowed  to  prove  that  the  consideration  was  inade- 
quate, or  even  that  there  was  none.26  Even  proof  that  a 
stranger  paid  the  consideration  for  the  assignment  is  not 
enough  to  defeat  the  action.  If  the  plaintiff  is  a  mere  trustee 
for  a  third  person,  the  burden  is  on  the  defendant  to  show 
it,27  and  then  it  must  be  shown  that  he  is  not  the  trustee  of 
an  express  trust  within  the  statute.28  It  is  enough,  in  the 


road  company  for  firing  premises 
may  be  assigned  to  one  holding  a 
binding  contract  for  the  purchase 
of  the  land.  Bultman  v.  Atlantic 
Coast  Line  Ry.  Co.,  103  S.  C.  512, 
88  S.  E.  Rep.  279. 

"Ten  Eyck  v.  Craig,  62  N.  Y. 
416,  affi'g  2  Hun,  452;  Arnott  v. 
Webb,  1  Dill.  C.  Ct.  362. 

»  Mills  v.  Fox,  4  E.  D.  Smith, 
220;  Daby  v.  Ericsson,  45  N.  Y. 
786;  Stone  v.  Frost,  61  Ida.  614, 
affi'g  6  Lans.  440. 

The  defendant  is  not  entitled  to 
inquire  into  the  consideration.  Liv- 
ingston v.  Spero,  18  N.  Y.  Misc. 
243,  41  N.  Y.  Supp.  606. 

Where  an  assignment  is  actually 
made  the  defendant  cannot  ques- 
tion it  on  the  ground  that  there 
was  no  consideration.  Levins  v. 
Stark,  57  Ore.  189,  110  Pac.  Rep. 
980. 

The  amount  of  consideration  for 
the  assignment  is  immaterial.  Bar- 
nett  v.  Ellis,  34  Neb.  539,  52  N.  W. 
Rep.  368. 

Inadequacy  of  consideration  is 
no  defense.  Wallace  v.  Leroy,  57 
W.  Va.  263,  50  S.  E.  Rep.  243,  110 
Am.  St.  Rep.  777. 

Evidence  of  want  of  considera- 
tion or  of  a  different  consideration, 
is  not  admissible  for  the  purpose 


of  varying,  contradicting  or  de- 
feating covenants  by  which  rights 
are  expressly  vested.  Burkett  v. 
Doty,  32  Cal.  App.  337,  162  Pac. 
Rep.  1042. 

"For  value  received"  held  to  be 
sufficient  as  against  demurrer  on 
ground  that  consideration  was  not 
specifically  stated.  Viguerie  v. 
Hall,  107  La.  767,  31  So.  Rep. 
1019;  Coe  v.  Hinkley,  109  Mich. 
608,  67  N.  W.  Rep.  915  (gratuitous 
assignment). 

The  burden  of  proof  of  considera- 
tion where  the  same  is  put  in  issue 
is  on  plaintiff  assignee.  Bersch  v. 
Sander,  37  Mo.  104. 

27  Eno  v.  Crooke,  10  N.  Y.  60. 

The  law  presumes  an  assign- 
ment to  .have  been  made  upon  a 
good  consideration  until  the  con- 
trary appears  affirmatively;  and 
that  it  is  fair  rather  than  fraudu- 
lent. Belden  v.  Meeker,  47  N.  Y. 
307;  Castle  v.  Lewis,  78  N.  Y.  131. 

28  N.  Y.  Code  Civil  Procedure, 
§449. 

The  assignee  of  a  promissory 
note  holds  the  legal  title  and  may 
sue,  though  the  equitable  owner- 
ship may  be  in  another.  Continen- 
tal Oil  &  C.  Co.  v.  Van  Winkle  Gin, 
etc.,  Works  (Tex.),  131  S.  W.  Rep. 
415. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


19 


first  instance,  for  the  plaintiff  to  prove  either  that  he  is  the 
real  party  in  interest,  or  that  he  is  the  trustee  of  an  express 
trust,  sufficiently  to  show  that  his  recovery  will  bar  the  right 
of  the  assignor.29 

8.  Gift. 

If  plaintiff  claims  under  an  oral  gift,  there  must  be  proof 
not  only  of  words  of  gift,  but  of  delivery  of  the  evidences  of 
the  thing  in  action,  sufficient  to  transfer  the  dominion  to  the 


29  See  Gardner  v.  Barden,  34  N. 
Y.  433,  and  cases  cited;  Allen  v. 
Brown,  51  Barb.  86,  44  N.  Y.  228. 

If  there  is  an  actual  bona  fide  as- 
signment of  a  claim,  then  the  plain- 
tiff acquired  title,  even  though  he 
may  have  paid  no  consideration. 
Kenedy  Town  &  Imp.  Co.  v.  First 
Nat.  Bank  (Tex.  Civ.  App.), 
136  S.  W.  Rep.  558;  Pearce  v. 
Wallis,  Landes  &  Co.  (Tex.),  124 
S.  W.  Rep.  496. 

A  general  denial  that  the  plain- 
tiff is  the  real  party  in  interest  will 
put  the  question  in  issue,  but  it 
will  not  be  sufficient  to  allow  de- 
fendant to  examine  plaintiff  before 
trial.  Ketcham  v.  Rowland  & 
Shafto,  71  N.  Y.  Misc.  439,  128 
N.  Y.  Supp.  695;  Henley  v.  Evans, 
54  Neb.  187,  74  N.  W.  Rep.  578. 

The  assignee  must  be  the  equi- 
table and  bona  fide  owner  of  the 
cause  of  action.  If  it  was  assigned 
without  consideration  for  the  sole 
purpose  of  allowing  the  assignee 
to  bring  the  action  in  his  name  for 
the  benefit  of  the  assignor,  the  as- 
signee is  not  a  bona  fide  owner. 
Muller  v.  Witte,  78  Conn.  495,  62 
Atl.  Rep.  756. 

Where  the  assignee  under  a 
written  assignment  makes  an  oral 


agreement  with  the  assignor  to 
pay  the  full  amount  recovered 
over  to  the  assignor,  the  assignee 
is  not  the  real  party  in  interest. 
Stewart  v.  Price,  64  Kan.  191,  67 
Pac.  Rep.  553,  64  L.  R.  A.  581. 

See  note  to  this  case  in  64  L.  R. 
A.  581,  as  to  who  is  the  real  party  in 
interest  within  the  meaning  of  the 
statutes  defining  the  parties  by 
whom  an  action  must  be  brought.) 

Assignee,  without  consideration 
and  merely  for  purpose  of  bringing 
the  suit  for  the  benefit  of  the  as- 
signor, has  no  title  (only  colorable) 
and  cannot  maintain  the  suit  in 
his  own  name.  Coombs  v.  Har- 
ford,  99  Me.  426,  59  Atl.  Rep.  529. 

The  question  of  the  transfer, 
being  only  colorable,  is  material  if 
the  rights  of  creditors  are  involved 
or  if  some  defense  or  counterclaim 
was  cut  off  by  the  assignment. 
Chase  v.  Dodge,  111  Wis.  70,  86 
N.  W.  Rep.  548. 

That  the  plaintiff  assignee  is  not 
the  real  party  in  interest  is  a  proper 
defense.  Henley  v.  Evans,  54  Neb. 
187,  74  N.  W.  Rep.  578. 

The  defense  that  plaintiff  is  not 
the  real  party  in  interest  must  be 
pleaded.  Lesh  v,  Meyer,  63  Kan. 
524,  66  Pac.  Rep.  245. 


20 


ACTIONS   BY   AND   AGAINST  ASSIGNEES 


plaintiff; 30  and  this  rule  is  equally  applicable  whether  the 


so  Johnson  v.  Spies,  5  Hun,  471. 
An  indorsement  of  intent  to  give, 
without  proof  of  delivery,  is  not 
enough.  Zimmerman  v.  Streeper, 
75  Pa.  147. 

An  order  given  by  a  decedent 
upon  a  tenant  for  the  delivery  of 
the  possession  of  personal  property 
does  not  establish  a  gift;  the  person 
receiving  such  property  pursuant 
to  such  order  is  merely  a  bailee. 
Rathgeb's  Estate,  125  Cal.  302, 
57  Pac.  Rep.  1010. 

Where  the  borrower  of  a  sum  of 
money  executed  a  receipt  contain- 
ing an  agreement  to  pay  the  money 
to  a  designated  person  upon  the 
death  of  the  lender,  there  is  no 
gift,  causa  mortis,  because  there  is 
no  delivery.  Ragan  v.  Hill,  72  Ark. 
307,  80  S.  W.  Rep.  150. 

Where  money  is  deposited  in 
bank  to  the  credit  of  the  depositor's 
wife  and  himself  with  the  provision 
that  in  event  of  death  of  either, 
the  survivor  is  to  draw  it,  it  con- 
stitutes a  gift  to  the  wife,  if  she 
survives.  A  delivery  of  the  pass- 
book is  unnecessary  to  perfect 
the  gift.  McElroy  v.  Nat.  Sav. 
Bank,  8  N.  Y.  App.  Div.  192, 
40  N.  Y.  Supp.  340. 

Delivery  is  necessary  to  effect  a 
gift  either  causa  mortis  or  inter 
vivos.  A  letter  written  by  donor 
stating  that  the  subject-matter 
belongs  to  donee  is  insufficient 
evidence  of  delivery.  Re  Miller, 
64  N.  Y.  Misc.  232, 119  N.  Y.  Supp. 
52. 

In  order  to  constitute  a  present 
gift  the  delivery  must  be  absolute 


and  unconditional.  Taylor  v.  Har- 
mison,  179  111.  137,  53  N.  E.  Rep. 
584. 

Delivery  is  necessary  to  a  valid 
gift  and  until  the  delivery  is  made 
in  the  manner  stated  by  the  donor, 
the  transaction  amounts  to  nothing 
more  than  a  promise  to  give.  Ross 
v.  Walker,  44  Fla.  704,  32  So.  Rep. 
934. 

Delivery  of  certificates  of  stock 
together  with  a  written  assign- 
ment is  held  sufficient  delivery  of 
the  stock  to  constitute  a  valid 
gift.  Talbot  v.  Talbot,  32  R.  I. 
72,  78  Atl.  Rep.  535,  Ann.  Gas. 
1912,  C.  122. 

The  mere  form  of  a  bank  ac- 
count will  not  be  sufficient  evi- 
dence of  intent  on  the  part  of  the 
person  making  the  deposit  to 
give  the  individual  whose  name 
is  associated  with  that  of  the  de- 
positor a  joint  interest  in  the  de- 
posit. In  re  Myers  Estate,  129 
N.  Y.  Supp.  194. 

Delivery  to  a  third  person  as 
agent  is  as  effectual  as  manual  de- 
livery directly  to  donee.  Jones  v. 
Nicholas,  151  la.  362,  130  N.  W. 
Rep.  125;  In  re  Bell's  Estate, 
150  la.  725,  130  N.  W.  Rep.  798. 

The  law  will  not  presume  a  gift 
if  any  other  presumption  is  open. 
Leask  v.  Hoagland,  144  N.  Y. 
App.  Div.  138,  128  N.  Y.  Supp. 
1017,  citing  Grey  v.  Grey,  47 
N.  Y.  552. 

Delivery  by  the  insured  of  an 
insurance  policy  payable  to  him 
if  living  at  the  end  of  40  years  is 
sufficient  to  sustain  a  gift,  made 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


21 


gift  was  in  view  of  death  or  not.31    According  to  some  au- 


six  years  after  the  policy  was  issued, 
of  all  his  rights,  title  and  interest 
therein.  Sheldon  v.  Chemung 
Canal  Bank,  67  Misc.  631,  122 
N.  Y.  Supp.  1057,  affirmed  in  140 
N.  Y.  App.  Div.  938,  125  N.  Y. 
Supp.  1144. 

It  is  incumbent  on  the  plaintiff 
donee  to  prove  that  the  donor 
did  voluntarily  transfer  to  donee 
the  title  and  deliver  the  possession 
of  the  res  of  the  gift.  Miles  v. 
Monroe,  96  Ark.  531,  132  S.  W. 
Rep.  643. 

31  Bedell  v.  Carll,  33  N.  Y.  581. 

Delivery  to  the  donee  is  an  es- 
sential element  of  a  gift,  whether 
inter  vivos  or  causa  mortis.  Death  of 
principal  terminated  agent's  au- 
thority; hence  the  delivery  by  the 
agent  after  such  death  was  in- 
effective. Wittman  v.  Pickens,  33 
Colo.  484,  81  Pac.  Rep.  299. 

A  gift  inter  vivos  of  personal 
property  must  be  perfected  by  de- 
livery. Wilson  v.  Edwards,  79 
Ark.  69,  94  S.  W.  Rep.  927;  Barn- 
house  v.  Dewey,  83  Kan.  12,  109 
Pac.  Rep.  1081,  29  L.  R.  A.  N.  S. 
166. 

To  establish  a  gift  causa  mortis 
the  law  requires  clear  and  unmis- 
takable proof  of  an  actual  gift 
perfected  by  as  complete  a  de- 
livery as  the  nature  of  the  property 
will  admit.  Farnsworth  v.  Whit- 
ing, 106  Me.  430,  76  Atl.  Rep.  909. 

Where  the  subject  of  a  gift 
causa  mortis  remains  under  the 
apparent  dominion  of  the  donor, 
the  gift  can  be  sustained  only  upon 
satisfactory  proof  that  the  donor 


did  not  concur  in  such  dominion. 
Parker  v.  Copland,  70  N.  J.  Eq. 
685,  64  Atl.  Rep.  129. 

Causa  mortis:  The  gift  must  be  in 
contemplation  of  the  near  approach 
of  death  to  take  effect  absolutely 
upon  death;  there  must  be  a  de- 
livery to  donee  or  someone  for 
him.  Inter  vivos:  The  gift  must 
be  absolute  and  irrevocable,  taking 
effect  immediately;  there  must  be 
delivery  to  donee  or  someone  for 
him.  Calvin  v.  Free,  66  Kan.  466, 
71  Pac.  Rep.  823. 

The  same  amount  of  proof  is 
required  to  support  a  gift  inter 
vivos,  when  not  asserted  until  after 
the  death  of  the  donor,  as  is  re- 
quired in  gift  causa  mortis.  To 
establish  a  gift  alleged  to  have  been 
made  by  a  deceased  person,  the 
burden  is  on  the  person  claiming 
the  gift  to  show  by  proof,  clear 
and  convincing,  that  the  subject- 
matter  had  passed  to  him  by  valid 
and  effective  gift.  Thomas  v. 
Tilley,  147  Ala.  189,  41  So.  Rep. 
854. 

Delivery  of  keys  of  a  safe  de- 
posit box  held  sufficient  delivery 
in  a  gift  causa  mortis  of  the  con- 
tents of  the  box.  Foley  v.  Harrison, 
233  Mo.  460,  136  S.  W.  Rep.  354. 

Delivery  is  essential  to  a  gift 
causa  mortis,  as  well  as  inter  vivos. 
Scott  v.  Union,  etc.,  Bank,  etc., 
Co.,  123  Tenn.  258, 130  S.  W.  Rep. 
757,  citing  Johnson  v.  Stevens, 
22  La.  Ann.  144;  Hanson  v.  Millett, 
55  Me.  184;  Egerton  v.  Egerton, 
17  N.  J.  Eq.  419;  Hatch  v.  Atkin- 
son, 56  Me.  324,  96  Am.  Dec.  464; 


22 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


thorities,  there  must  be  a  written  transfer; 32  but  while  there 
may  be  reason  for  this  rule  when  the  gift  is  set  up  against 
the  alleged  donor,  or  his  successors  or  representatives,  the 
better  opinion  is  that  a  gift  by  delivery  is  sufficient  to  enable 
the  donee  to  enforce  the  chose  in  action  against  the  debtor.33 
But  bare  possession  of  the  evidences  of  debt  is  not  ordinarily 
enough  to  raise  a  presumption  of  a  gift.34  Where  the  party 


and  many  other  authorities  on  gift 
causa  mortis. 

81  Johnson  v.  Spies,  above;  Gray 
v.  Barton,  55  N.  Y.  73,  2  Kent's 
Com.  439. 

In  the  case  of  a  gift  of  a  chose  in 
action  the  law  requires  a  written 
assignment  or  some  equivalent  to 
effect  the  transfer.  Shepard  v. 
Shepard,  164  Mich.  183, 129  N.  W. 
Rep.  201. 

"Mack  v.  Mack,  3  Hun,  323. 
See  page  196  of  this  vol. 

Uncontroverted  evidence  of  gift 
consummated  by  delivery  will  en- 
able claimant  to  enforce  claim. 
Moore  ».  Cline,  115  Ga.  405,  41 
S.  E.  Rep.  614. 

Statement  made  by  donor  that 
he  had  indorsed  certain  notes, 
contained  in  his  pocket  book,  to 
donee,  and  then  told  donee  where 
the  pocket  book  was  and  requested 
him  to  bring  it  to  the  donor,  and 
donee  brought  it  and  donor  told 
him  to  put  it  out  of  sight — held 
sufficient  to  establish  delivery. 
Royston  v.  McCulley  (Tenn.  Ch. 
App.),  59  S.  W.  Rep.  725,  52  L.  R. 
A. 899. 

A  note  which  is  a  mere  promise 
to  make  a  gift  in  the  future  can- 
not be  enforced  against  the  es- 
tate of  the  maker.  There  must 
be  delivery.  Tyler  v.  Stitt, 


127  Wis.  379,  106  N.  W.  Rep. 
114. 

A  gift  of  a  mortgage  by  delivery 
of  it  to  a  third  party  designated  by 
the  donee  and  a  subsequent  de- 
positing of  said  mortgage  in  a 
box  containing  papers  belonging 
to  the  testator  is  a  valid  gift  causa 
mortis.  In  re  Van  Derzee,  66 
N.  Y.  Misc.  399,  121  N.  Y.  Supp. 
662. 

A  parol  gift  of  land  without 
more,  is  ineffectual  to  pass  title  to 
the  donee.  Thaggard  v.  Crawford, 
112  Ga.  326,  37  S.  E.  Rep.  367. 

Proof  of  parol  gift  of  land  and 
entry  thereunder  will  sustain  claim 
of  possession  accompanied  by  a 
bona  fide  claim  of  right,  which 
could  ripen  into  ownership.  Ellis 
v.  Dasher,  101  Ga.  5,  29  S.  E.  Rep. 
268. 

Where  a  gift  inter  vivos  is  per- 
fected by  delivery  of  possession  of 
the  thing  or  delivery  of  a  deed  of 
gift,  it  is  complete,  although  made 
without  any  consideration.  Bur- 
kett  v.  Doty,  32  Cal.  App.  337, 
162  Pac.  Rep.  1042. 

"Grey  v.  Grey,  47  N.  Y.  552, 
rev'g  2  Lans.  173;  Bedell  v.  Carll, 
33  N.  Y.  581. 

The  mere  possession  of  certain 
notes  is  insufficient  to  establish  a 
gift  either  inter  vivos  or  causa 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


23 


claims  title  to  the  cause  of  action  by  such  a  disposition,  he 
is  not  required  to  show  affirmatively,  and  with  minuteness, 
the  circumstances  under  which  the  alleged  gift  was  made; 
nor  that  the  donor  was  of  sound  disposing  mind  and  mem- 
ory when  he  made  the  gift,  and  that  delivery  of  the  subject 
was  his  free  and  voluntary  act.  These  are  matters  of  defense, 
equally  in  cases  of  gifts  inter  vivos  and  gifts  causa  mortis.*'* 


mortis  unaccompanied  by  proof 
of  delivery.  Smith  v.  Zumbro, 
41  W.  Va.  623,  24  S.  E.  Rep.  653. 

The  execution  and  delivery  of  a 
deed  vests  the  grantee  with  an 
interest  in  the  land  even  if  the 
grantor  retakes  possession  of  the 
deed.  Foreman  v.  Archer,  130 
Iowa,  49, 106  N.  W.  Rep.  372. 

Before  a  parol  gift  of  land  will 
be  recognized  the  donee  must  have 
taken  possession  of  it  under  the 
gift  and  held  it  adversely  for  the 
statutory  time  or  made  substan- 
tial improvements  on  the  land. 
Kelly  ».  Kelly  (la.),  130  N.  W. 
Rep.  380;  Wilkerson  v.  Chars 
(Tex.),  133  S.  W.  Rep.  481. 

Possession  of  a  ring  by  the  donor 
until  her  death  is  not  conclusive 
that  she  did  not  give  it  away  during 
her  lifetime.  Garrison  v.  Union 
Trust  Co.,  164  Mich.  345, 129  N. W. 
Rep.  691,  32  L.  R.  A.  N.  S.  219. 

While  a  complete  and  uncon- 
ditional delivery  is  essential  to  the 
validity  of  a  gift  a  constructive  or 
symbolic  delivery  will  meet  the 
requirements  of  the  law;  and  where 
there  is  a  delivery  the  fact  that  the 
property  may  be  redelivered  to 
the  donor  as  agent  of  the  donee, 
or  for  safe-keeping,  will  not  nullify 
or  affect  the  gift.  Hess  v.  Hartwig, 
83  Kan.  592,  112  Pac.  Rep.  99. 


The  mere  possession  and  use  of 
a  horse  by  the  donor  after  having 
made  a  gift  of  it,  will  not  divest 
or  even  impair  the  title  of  the 
donee.  Swindell  v.  Swindell,  153 
N.  C.  22,  68  S.  E.  Rep.  892. 

It  is  settled  law  that  a  valid  gift 
of  money  in  a  savings  bank  may 
be  effected  by  the  delivery  to  the 
donee  of  the  depositor's  passbook. 
Union  Trust,  etc.,  Bank  v.  Tyler, 
161  Mich.  645,  126  N.  W.  Rep. 
713,  137  Am.  St.  Rep.  523. 

But  the  donor  must  give  up  all 
dominion  over  the  book.  Kelly  v. 
Perkins  (N.  J.),  78  Atl.  Rep.  14. 

«  Bedell  v.  Carll,  33  N.  Y.  581. 

Where  the  subject-matter  is  not 
susceptible  of  a  physical  delivery, 
the  acts  of  the  donor  ratifying  and 
acknowledging  the  ownership  of 
the  donee  will  be  sufficient  to  sus- 
tain a  verdict  in  favor  of  the  donee. 
McMullen  ».  Stripling,  120  Ga. 
658,  48  S.  E.  Rep.  115. 

Where  the  donor  is  a  widow  en- 
feebled in  mind  by  disease  and  old 
age,  and  the  person  benefited  is 
her  son,  with  whom  she  makes  her 
home,  the  presumption  is"  that  the 
gift  was  brought  about  by  undue 
influence,  and  the  burden  is  upon 
the  party  benefited  to  prove  af- 
firmatively that  the  transaction 
was  fairly  conducted.  Smith  v. 


24 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


9.  Object,  when  Material. 

If  the  transfer  was  valid  as  between  the  parties  to  it,  the 
defendant  cannot  question  it  by  proof  that  it  was  made  for 
the  purpose  of  enabling  the  suit  to  be  brought,  because  the 
assignor  could  not  bring  it,36  or  for  the  purpose  of  enabling 
the  assignor  to  be  a  witness.37  And  even  proof  of  fraud  on 


Smith,  84  Kan.  242,  114  Pac.  Rep. 
245,  35  L.  R.  A.  N.  S.  944. 

The  burden  of  proof  is  upon  the 
assignee  to  show  that  an  assign- 
ment made  by  a  very  aged  person, 
was  made  without  duress  or  undue 
influence.  Schanck  v.  Hopper,  160 
N.  Y.  Supp.  627. 

Donee  of  a  check  cannot  recover 
the  amount  of  it  from  the  estate 
of  the  deceased  donor,  as  the  death 
of  the  donor  before  the  check  was 
presented  for  payment  or  paid 
has  the  effect  of  revoking  the  gift. 
If,  however,  the  check  was  given 
not  as  a  gift,  but  as  compensation 
for  services  rendered  plaintiff  can 
recover.  Cox  v.  Walker,  140  Ky. 
172,  130  S.  W.  Rep.  984,  140  Am. 
St.  Rep.  367. 

34  As  where  the  assignor  and 
debtor  were  both  foreign  corpora- 
tions. McBride  v.  Farmers'  Bank, 
26  N.  Y.  450,  affi'g  25  Barb.  657; 
or  the  assignor  was  a  foreign  execu- 
tor or  administrator.  Petersen  v. 
Chemical  Bank,  32  N.  Y.  21. 

Under  the  statute  the  defendant 
has  the  right  to  insist  that  the 
action  shall  be  brought  by  the  real 
party  in' interest,  but  the  purpose 
of  the  statute  is  obtained  if  the 
defendant  is  not  prevented  from 
setting  up  all  defenses  and  is  fully 
protected  against  future  suits  for 
the  same  cause.  Rullman  v.  Rull- 


man,  81  Kan.  521,  106  Pac.  Rep. 
52. 

In  Arkansas  the  assignee  of  the 
claim  growing  out  of  the  breach  of 
supersedeas  bond  has  the  right  to 
sue  in  his  own  name  under  §  5999 
of  Kirby's  Digest.  Love  v.  Cahn, 
93  Ark.  215, 124  S.  W.  Rep.  259. 

The  assignee  of  a  claim  is  the 
real  party  in  interest  and  the 
proper  party  to  sue  thereon;  and 
the  fact  that  such  transfer  is  color- 
able only  is  immaterial  unless  the 
rights  of  creditors  are  involved 
or  the  right  to  interpose  some  de- 
fense is  cut  off  by  the  assignment. 
Chase  v.  Dodge,  111  Wis.  70,  86 
N.  W.  Rep.  548. 

Where  a  claim  has  been  assigned 
by  an  instrument  under  seal,  the 
adverse  party  is  not  entitled  to 
show,  by  the  assignor,  that  the 
latter  is  still  interested  in  the  claim. 
Livingston  v.  Spero,  18  N.  Y.  Misc. 
243,  41  N.  Y.  Supp.  606. 

Where  the  defendant  denies  the 
assignment  to  the  plaintiff  a  further 
allegation  that  the  plaintiff  as- 
signee is  not  the  real  party  in  in- 
terest is  not  good  as  a  separate 
defense,  as  the  claim  can  be  fully 
investigated  under  the  denial  of 
the  assignment.  Smith  v.  N.  Y. 
Cooperage  Co.,  35  N.  Y.  Misc. 
203,  71  N.  Y.  Supp.  479. 

37  Gardner  v.  Barden,  above;  and 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


25 


the  part  of  the  parties  to  the  assignment,  such  as  would 
enable  creditors  to  avoid  it,  will  not  avail  the  debtor.38  But 
evidence  that  the  assignment  was  positively  illegal,  as,  for 
example,  that  it  was  made  to  an  attorney  for  the  purpose 
of  his  bringing  an  action,  is  competent.39  In  other  words,  it 


see  Westervelt  v.  Allcock,  3  E.  D. 
Smith,  243. 

An  assignment  by  a  party  to  a 
controversy,  made  only  for  the 
purpose  of  enabling  him  to  sustain 
the  suit  by  his  testimony,  is  not 
made  in  that  good  faith  which  the 
statute  intends,  and  is  ineffectual 
to  accomplish  the  purpose.  Ver- 
stine  v.  Yeaney,  210  Pa.  109,  59 
Atl.  Rep.  689. 

In  Kansas  the  assignee  of  an  ad- 
ministrator is  not  an  incompetent 
witness  under  §  320,  Code  of  1909, 
prohibiting  an  administrator  from 
testifying.  John  T.  Stewart  Es- 
tate v.  Falkenberg,  82  Kan.  576,' 
109  Pac.  Rep.  170. 

38  Osborne  v.  Moss,  7  Johns.  161; 
Waterbury  v.  Westervelt,  9  N.  Y. 
598. 

The  validity  of  an  assignment 
cannot  be  attacked  by  the  debtor 
in  an  action  by  the  assignee  on 
the  ground  that  it  was  an  assign- 
ment for  the  benefit  of  creditors, 
and  void  because  of  a  failure  to 
comply  with  the  statutory  require- 
ments, as  such  assignment  is  sub- 
ject only  to  attack  by  the  creditors. 
Blackford  v.  Westchester  Fire  Ins. 
Co.,  101  Fed.  Rep.  90,  41  C.  C.  A. 
226. 

A  bona  fide  contract  for  the  as- 
signment of  a  claim  in  suit  is  not 
rendered  invalid  because  the  ul- 
terior motive  of  one  of  the  parties 


is  to  prevent  a  compromise,  or  to 
prolong  the  suit,  in  order  to  annoy 
or  embarrass  the  defendant  therein. 
Rucker  v.  Bolles,  80  Fed.  Rep.  504, 
25  C.  C.  A.  600. 

39  2  Rev.  St.  288,  §  71;  Mann  v. 
Fairchild,  3  Abb.  Ct.  App.  Dec. 
152;  Moses  v.  McDivitt,  2  Abb. 
N.  Cas.  47.  Formerly  the  mere 
purchase  was  evidence  of  intent. 
3  Wend.  120.  It  is  now  only  a 
necessary  circumstance  with  others 
to  show  intent.  See  Bristol  v. 
Dann,  12  Wend.  142;  Williams  v. 
Mathews,  3  Cow.  252. 

A  fictitious  transfer  of  a  claim 
to  a  nominal  party,  to  confer  juris- 
diction on  a  court  of  a  certain 
county,  the  original  claimants  be- 
ing the  real  parties  in  interest,  is 
insufficient  for  the  purpose  de- 
signed. Douglas  v.  Walker,  42 
Tex.  Civ.  App.  213,  92  S.  W.  Rep. 
1026. 

A  person  who  has  sustained  in- 
juries may,  in  consideration  of 
legal  services  rendered  and  to  be 
rendered,  assign  a  part  of  his  claim 
for  damages  to  his  attorney,  who 
is  a  proper  party  to  the  action. 
A.  K.  Mclnnis  Lumber  Co.  v. 
Rather,  111  Miss.  55,  71  So.  264. 

Under  the  Louisiana  law,  an 
injured  employee  may  assign  his 
claim  for  damages  to  his  employer, 
and  in  the  event  of  his  death  re- 
sulting from  such  injuries,  his 


26 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


is  enough  for  the  plaintiff  to  show  an  assignment  which  bound 
the  assignor,  bu,t  the  defendant  may  show  that  it  was  illegal 
on  the  part  of  the  plaintiff  to  receive  it. 

10.  Best  and  Secondary  Evidence. 

If  it  appears  that  the  assignment  of  the  cause  of  action 
was  made  by  a  written  instrument,  the  writing  is  the  best 
evidence,  and  must  be  produced  or  accounted  for.40  And, 
in  general,  wherever  the  nature  or  extent  of  plaintiff's  in- 
terest in  property  is  material  under  the  issue,  the  written 
instrument  of  transfer  under  which  he  claims  may  be  called 
for  as  the  best  evidence.41  But  a  distinction  is  made  hi  this 
rule,  between  a  writing  which  is  the  vital  instrument  of 
transfer,  such  as  a  bill  of  sale,  and  a  writing  which  is  merely 
an  incidental  or  collateral  memorandum  of  a  transfer  made 
verbally,  such  as  a  bill  of  parcels  stating  price,  and  receipted. 


widow  may  assign  her  claim  for 
such  damages  to  the  attorney 
whom  she  employs  for  its  collec- 
tion. Shreveport  v.  Southwestern 
Gas  and  Electric  Co.,  140  La.  1078, 
74  So.  Rep.  559. 

«  Gilmore  v.  Bangs,  55  Ga.  403. 

The  assignment  of  a  bank  ac- 
count being  in  writing,  it  cannot 
be  proved  by  oral  testimony. 
Robbins  ».  Bank  of  M.  &  L. 
Jarmulowsky,  90  N.  Y.  Supp. 
288. 

Where  there  is  no  evidence  of 
loss  of  a  note,  or  that  an  alleged 
assignment  thereof  was  in  the 
handwriting  of  payee,  parol  evi- 
dence is  incompetent  to  show  the 
assignment.  Stancill  v.  Spain,  133 
N.  C.  76,  45  S.  E.  Rep.  466. 

"Epping  v.  Mockler,  55  Ga. 
376. 

The  bill  of  sale  is  the  best  evi- 
dence of  a  transfer  of  personalty. 


Fischers.  Johnson,  106  Iowa,  181, 
76  N.  W.  Rep.  658. 

Where  claims  are  reduced  to 
writing  and  recorded,  the  writing 
is  the  best  evidence.  Hirsch  v. 
Beverly,  125  Ga.  657,  54  S.  W. 
Rep.  678. 

But  where  no  legal  objection  is 
interposed  oral  evidence  of  assign- 
ment is  sufficient  to  sustain  a 
verdict  even  though  there  is  a 
written  assignment  which  is  not 
produced.  Dorais  ».  Doll,  33  Mont. 
314,  83  Pac.  Rep.  884. 

It  is  not  competent  to  prove  by 
parol  any  facts  tending  to  establish 
an  agreement  contrary  to  the  terms 
of  a  written  assignment  convejang 
a  present  interest  or  title  in  prop- 
erty to  a  third  person,  although 
it  may  be  only  an  interest  in  a 
future  estate.  Burkett  v.  Doty, 
32  Cal.  App.  337,  162  Pac.  Rep. 
1042. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES  27 

Where  the  former  is  shown  to  exist  it  must  be  produced; 
but  the  latter  is  not  primary  evidence,  and  need  not  be 
produced.42 

11.  Proof  of  Execution. 

The  execution  of  a  written  assignment  may  be  proved  by 
having  it  acknowledged  by  the  assignor,  or  proved  by  a 
subscribing  witness,  before  an  officer  authorized  to  take 
acknowledgment  and  proof  of  deeds; 43  and  this  may  be 
done  even  after  the  action  has  been  commenced,  and  at  any 
time  before  the  actual  offer  of  the  document  in  evidence.44 
Unless  this  is  done,  the  assignment,  whether  under  seal  or 
not,45  if  attested  by  subscribing  witness,  must  be  proved  by 
the  witness  or  his  handwriting.46 

12.  Delivery  and  Acceptance. 

Delivery  of  a  written  assignment  is  presumed  when  the 
instrument  is  proved  to  have  been  executed  by  the  assignor, 
and  is  actually  produced  by  the  plaintiff  at  the  trial; 47  and 

42  Dunn  v.  Hewitt,  2  Den.  (N.  Y.)  An  instrument,  executed  several 

638.  years  before  trial  but  to  which  the 

Unsigned   schedule  accompany-  certificate   of   acknowledgment   is 

ing  signed  letter.     Coe  v.  Tough,  not  affixed  until  the  moment  be- 

116  N.  Y.  273,  22  N.  E.  Rep.  550.  fore  it  is  offered  in  evidence,  is 

Telegrams  used  in  corresponding.  complete  and  is  admissible  with- 

Beach  v.  Raritan,  etc.,  R.  R.  Co.,  out   further    proof.      Wetterer   v. 

37  N.  Y.  457.  Soubirous,  22  N.  Y.  Misc.  739,  49 

«  N.  Y.  Code  Civ.  Pro.,  §  937.  N.  Y.  Supp.  1043. 

Add  county  clerk's  certificate  where  «1  Greenl.  Ev.  §569;    King  v. 

required.  Smith,  21  Barb.  158. 

A  person  doing  business  under  « 1  Greenl.  Ev.,  §  569;  Jones  v. 

a  corporate  name  sufficiently  as-  Underwood,  28  Barb.  481. 

signs  an  account  if  he  adds  after  The  assignment  of  a  cause  of 

such  corporate  name  his  own  sig-  action   by   a   former   plaintiff   in 

nature  prefixed  by  the  word  "by."  a    suit    does    not    prove    itself. 

German  Investment  &   Securities  Standifer  v.  Bond  Hardware  Co. 

Co.  v.  Rock  Falls  Mfg.  Co.,  193  (Tex.  Civ.  App.),  94  S.  W.  Rep. 

111.  App.  229.  144. 

"Holbrook  v.  N.  J.  Zinc  Co.,  "  Story  v.  Bishop,  4  E.  D.  Smith, 

57  N.  Y.  616.  423;  North  v.  Turner,  9  Serg.  &  R. 


28 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


affirmative  proof  of  the  acceptance  of  an  assignment  which 
appears  to  be  beneficial  to  the  assignee,  is  not  required  from 
the  party  propounding  it,  but  the  party  impeaching  it  must 
disprove  acceptance.48 

13.  Assignment  with  Schedules. 

If  plaintiff  claims  under  a  general  assignment  with  a 
schedule  of  the  articles  transferred,  general  words  hi  the 
assignment,  with  nothing  in  it  to  indicate  that  the  schedule 
is  to  control,  will  pass  the  right  of  action,  though  it  be 
omitted  from  the  schedule;  and  parol  evidence  that  it  was 
not  intended  to  pass  it,  has  been  held  incompetent  as  vary- 
ing the  assignment.49  But  evidence  that  it  was  hi  fact  in- 


244;  Burkett  t>.  Doty,  32  Cal.  App. 
337,  1G2  Pac.  Rep.  1042. 

Executing  an  assignment  of  a 
life  insurance  policy  as  security 
for  a  loan  and  exhibiting  the  policy, 
with  such  assignment  attached, 
to  the  lender  is  sufficient  to  give  to 
lender  the  security.  Richardson  v. 
White,  167  Mass.  58,  44  N.  E. 
Rep.  1072. 

The  delivery  of  the  written  as- 
signment of  a  bond  to  the  assignee 
is  a  sufficient  delivery  to  pass  the 
equitable  title  to  the  bond,  and 
the  bond  itself  need  not  be  de- 
livered. Tatum  v.  Ballard,  94 
Va.  370,  26  S.  E.  Rep.  871. 

To  be  effectual,  the  delivery  of  a 
written  instrument  must  be  in- 
tentionally made  with  the  purpose 
that  the  instrument  shall  become 
operative.  Erickson  v.  Kelly,  9 
N.  Dak.  12,  81  N.  W.  Rep.  77. 

48  Van  Buskirk  v.  Warren,  4  Abb. 
Ct.  App.  Dec.  457. 

The  assignor  of  a  judgment  can- 
not subsequently  sue  on  the  judg- 
ment because  the  assignee  has 


failed  in  a  prior  action  to  prove 
acceptance  of  the  assignment. 
Crum  v.  Stanley,  55  Neb.  351,  75 
N.  W.  Rep.  851. 

Wrhere  a  husband  assigns  a 
building  contract  to  his  wife  and 
records  the  assignments  and  then 
proceeds  with  the  work  and  pur- 
chases materials,  all  without  her 
knowledge,  her  subsequent  acts  in 
assigning  sums  due  under  the  con- 
tracts to  materialmen,  amount 
to  a  total  ratification  of  all  her 
husband's  acts  and  render  her 
liable.  In  re  Berkebile,  144  Fed. 
Rep.  572. 

Subsequent  payments  by  the 
assignee  to  the  assignor  upon  an 
assignment  of  a  claim  are  evidence 
of  the  assignee's  acceptance.  Wil- 
son t>.  Kiesel,  9  Utah,  397,  35  Pac. 
Rep.  488. 

49  Cram  v.  Union  Bank,  1  Abb. 
Ct.  App.  Dec.  461.  Contra,  Platt 
v.  Thorn,  8  Bosw.  574.  Compare 
Nims  v.  Armstrong,  31  Md.  87,  2 
Whart.  Ev.  §  944. 

Parol    evidence    is    incompetent 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


29 


serted  in  the  schedule  by  a  designation  partially  false  or 
inapplicable  is  competent.50 

14.  Assignment  by  Corporation. 

If  plaintiff  claims  as  assignee  of  a  corporation,  evidence 
of  the  existence  of  the  corporation  is  admissible  without  any 
allegation  of  that  fact  other  than  such  as  is  implied  in  the 
mention  of  the  corporate  name  in  the  complaint.51  The 
plaintiff  is  not  held  to  make,  as  against  the  debtor,  so  clear 
proof  of  a  valid  assignment  by  the  corporation  as  he  might 
be  required  to  in  a  contest  with  the  creditors  or  stockholders 
of  the  corporation.  As  against  the  debtor,  an  assignment  of 
the  cause  of  action  is  presumed  valid,  although,  having  been 
made  by  a  moneyed  corporation,  a  vote  of  the  board  was 
necessary  to  its  legality,  and  there  is  no  evidence  thereof.52 


to  enlarge  the  scope  of  a  written 
contract.  Kessler  v.  Perilloux,  132 
Fed.  Rep.  903,  66  C.  C.  A.  113. 

See  paragraph  16  below. 

60  Commercial  Bank  v.  Clapier,  3 
Rawle,  335,  339.  The  inventory  or 
schedule  is  to  be  read  in  connec- 
tion with  the  assignment  and  as 
part  of  the  transaction.  Roberts 
v.  Victor,  130  N.  Y.  585,  29  N.  E. 
Rep.  1025.  See  also  Turnipseed  v. 
Schaefer,  76  Ga.  109,  2  Am.  St. 
Rep.  17. 

But  see  Roberts  v.  Buckley,  145 
N.  Y.  215,  39  N.  E.  Rep.  966,  in 
which  the  court  distinguished  Rob- 
erts v.  Vietor  and  sustained  the 
correcting  of  mistakes  and  defects 
in  the  inventory. 

»  Kennedy  v.  Cotton,  28  Barb.  9. 
An  assignment  for  the  benefit  of 
creditors,  made  in  New  York  by 
an  insolvent  foreign  corporation, 
valid  under  the  law  of  its  domicile, 
will  be  recognized  as  valid  here. 


Vanderpoel  v.  Gorman,  140  N.  Y. 
563,  35  N.  E.  Rep.  932.  In  the 
absence  of  any  statute  or  of  a  by- 
law of  the  corporation  providing 
otherwise,  such  an  assignment  may 
be  executed  by  the  president  and 
secretary  under  authority  of  its 
board  of  managers.  Id. 

Under  N.  Y.  Code  Civ.  Pro., 
§  1776,  the  plaintiff,  assignee  of  a 
corporation,  need  not  prove  the 
existence  of  the  corporation  unless 
the  answer  is  verified  and  contains 
an  affirmative  allegation  that  it  is 
not  a  corporation.  Crocker  v. 
Muller,  40  N.  Y.  Misc.  685,  83 
N.  Y.  Supp.  189. 

The  assignee  of  a  corporation 
which  has  failed  to  pay  its  license 
fee  to  the  State  cannot  sue  in  the 
State.  Kinney  v.  Reid  Ice  Cream 
Co.,  57  N.  Y.  App.  Div.  206,  68 
N.  Y.  Supp.  325. 

"Belden  v.  Meeker,  47  N.  Y. 
307,  affi'g  2  Lans.  470,  9  Moak's 


30 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


But  where  there  is  evidence  that  the  transfer  was  made  with- 
out a  vote  of  the  board,  the  burden  is  on  the  assignee  to 
show  that  he  took  it  for  value,  and  without  notice.53  This 
he  may  always  show  in  support  of  his  title,  whether  he  took 
directly  from  the  corporation  or  through  a  third  person.54 
The  fact  that  plaintiff  himself,55  or  even  one  of  several  plain- 
tiffs,56 was  a  director  at  the  time  of  such  an  illegal  transfer, 
is  sufficient  evidence  of  notice  to  defeat  the  action. 

16.  Authority  of  Officer  or  Agent. 

To  show  the  authority  of  the  officers  of  the  corporation 
to  make  the  transfer,  their  official  character  may  be  proved 
either  by  the  corporate  minutes,  or  by  witnesses  testifying 


Eng.  255,  n.  Compare  to  the  con- 
trary, Houghton  v.  McAuliffe,  2 
Abb.  Ct.  App.  Dec.  409. 

The  seal  of  a  corporation  at- 
tached to  a  written  instrument 
is  sufficient'  evidence  of  authority 
of  the  officer  who  signs  the  name 
of  the  corporation.  Collier  v. 
Alexander,  142  Ala.  422,  38  So. 
Rep.  244. 

A  parol  assignment  may  be 
made  by  the  members  of  a  board 
of  directors  of  a  business  corpora- 
tion, for  a  sufficient  consideration 
moving  to  it  which,  when  acqui- 
esced in  and  satisfied,  will  be  en- 
forced by  a  court  of  equity.  Hof- 
ferberth  v.  Duckett,  175  App.  Div. 
498,  162  N.  Y.  Supp.  167. 

53  Houghton  v.  McAuliffe,  above. 
Contra,  Caryl  v.  McElrath,  3 
Sandf.  176. 

In  order  to  be  entitled  to  sue, 
the  holder  of  commercial  paper 
must  have  the  right  of  possession 
and  must  be  the  legal  owner. 
Hays  v.  Hathorn,  74  N.  Y.  486; 
Sheridan  v.  New  York,  68  N.  Y.  30. 


61  Curtis  v.  Leavitt,  15  N.  Y.  9. 
Proof  of  payment  of  value  raises  a 
presumption,  according  to  Warner 
v.  Chappel,  32  Barb.  309,  that 
plaintiff  took  without  notice. 

See  also  Merillat  v.  Hensey,  221 
U.  S.  333,  3  Super.  Ct.  575,  56 
L.  ed.  758,  36  L.  R.  A.  N.  S.  370, 
Ann.  Gas.  1912,  Div.  497. 

"Gillet  v.  Phillips,  13  N.  Y. 
(3  Kern.)  114;  Atkinson  v.  Roches- 
ter Printing  Co.,  114  N.  Y.  168, 
21  N.  E.  Rep.  178.  See  also  Lake 
v.  Lake,  136  N.  Y.  App.  Div.  47, 
119  N.  Y.  Supp.  686. 

"Smith  v.  Hall,  5  Bosw.  319; 
Atkinson  v.  Rochester  Printing 
Co.,  114  N.  Y.  168,  21  N.  E.  Rep. 
178. 

Where  an  officer  induces  a  cor- 
poration to  convey  property  to 
him,  and  he  himself  casts  the  carry- 
ing vote,  the  corporation  may  file 
a  bill  in  equity  to  have  such  trans- 
fer set  aside.  Mobile  Land  Imp. 
Co.  v.  Gass,  142  Ala.  520,  39  So. 
Rep.  229. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


31 


to  the  fact  of  their  habitually  acting  as  such,  and  without 
producing  the  books,57  and  the  jury  may  infer  the  authority 
of  the  officer  to  do  the  particular  act  from  evidence  of  the 
exercise  by  him  of  the  same  general  power,  with  the  knowl- 
edge and  acquiescence  of  the  directors.58 


"Partridge  v.  Badger,  25  Barb. 
146.  An  assignment  of  a  claim  by 
a  corporation,  executed  by  its 
president  in  the  presence  of  its 
secretary  and  attested  by  its  cor- 
porate seal,  is  sufficient  to  protect 
the  debtor  in  paying  the  amount 
of  the  claim  to  the  assignee.  Purdy 
v.  Nova  Scotia  Midland  Ry.  Co., 
8  Misc.  Rep.  (N.  Y.)  510.  Au- 
thority of  the  secretary  to  make 
an  assignment  of  the  indebtedness 
due  to  the  corporation  will  not  be 
presumed;  it  must  be  proved. 
Read  v.  Buffum,  79  Cal.  77,  12 
Am.  St.  Rep.  131,  21  Pac.  Rep. 
555. 

Where  the  corporation  seal  is 
affixed  the  presumption  is  that 
the  executing  officer  had  authority. 
Carr  v.  Georgia  Loan  &  Trust  Co., 
108  Ga.  757,  33  S.  E.  Rep.  190;  Col- 
lier v.  Alexander,  142  Ala.  422,  38 
So.  Rep.  244. 

Where  the  seal  is  not  affixed  the 
officer's  authority  must  be  gath- 
ered from  some  other  source. 
Degnan  v.  Thoroughman,  88  Mo. 
App.  62. 

Where  the  president  of  a  cor- 
poration which  holds  a  chattel 
mortgage  on  certain  property  con- 
sents to  the  sale  of  that  property 
by  the  owner,  it  will  be  presumed 
that  such  consent  was  authorized 
by  the  corporation,  in  the  absence 
of  contrary  proof.  Anderson  v. 


South  Chicago  Brew.  Co.,  173  111. 
213,  50  N.  E.  Rep.  655. 

Under  an  allegation  of  assign- 
ment by  a  corporation,  proof  of 
authority  of  the  officer  making  it 
is  admissible.  University  of  Chi- 
cago v.  Emmert,  108  Iowa,  500, 
79  N.  W.  Rep.  285. 

88  Merchants'  Bank  v.  State 
Bank,  10  Wall.  604.  Compare 
Jackson  v.  Campbell,  5  Wend.  572; 
Hoyt  v.  Thompson,  5  N.  Y.  320. 

Assignment  of  a  street-assess- 
ment claim  is  sufficiently  proved 
where  it  is  shown  that  it  was  made 
by  the  general  manager  of  the  cor- 
poration which  did  the  work,  and 
that  he  was  in  the  habit  of  execut- 
ing assignments  for  the  corporation 
with  the  knowledge  and  acquies- 
cence of  the  board  of  directors. 
Reid  v.  Clay,  134  Cal.  207,  66  Pac. 
Rep.  262. 

Where  the  statute  authorizes 
conveyance  of  property  by  a  cor- 
poration by  deed  executed  by  the 
president  or  vice  president  thereof 
when  given  such  power  by  its  by- 
laws, a  deed  so  executed  is  pre- 
sumptively valid.  American  Exch. 
Nat.  Bank  v.  Ward,  111  Fed.  Rep. 
782,  49  C.  C.  A.  611,  55  L.  R.  A. 
356. 

Where  the  evidence  shows  that 
the  agent  is  referred  to  in  the 
minutes  of  the  corporation  as 
"general  manager"  and  there  are 


32 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


16.  Parol  Evidence  to  Vary  a  Writing. 

The  rule  excluding  parol  evidence,  when  offered  to  vary 
a  contract,  has  often  been  applied  against  assignees  of  a  con- 
tract, and  against  a  debtor  seeking  to  explain  or  vary  an 
assignment  of  his  debt.59  But  the  later  authorities  recog- 
nize the  qualification  that  in  actions  between  a  stranger  to 
the  instrument  and  a  party  to  it,  as  well  as  between  stran- 
gers, either  may  give  parol  evidence  to  vary  it.590  Hence 
letters  offered  written  by  him  to  &  Co.  v.  Humboldt  &  Co.,  27  N.  Y. 


the  corporation,  it  is  sufficient  to 
take  the  case  to  the  jury.  Clarke 
v.  Lexington  Stove  Works,  24  Ky. 
Law  Rep.  1755,  72  S.  W.  Rep.  286. 

Proof  of  the  official  position  of 
the  officer  of  a  corporation  execut- 
ing the  assignment  of  a  contract  is 
competent.  Univ.  of  Chicago  v. 
Emmert,  108  Iowa,  500,  79  N.  W. 
Rep.  285. 

The  president,  being  the  head  of 
a  corporation  acts  for  the  body, 
and  executes  its  contracts  and 
agreements;  and  when  his  name 
appears  to  an  instrument  the  law 
will  presume  that  it  is  executed  by 
sufficient  authority  from  the  body. 

Under  no  theory  of  the  implied 
or  exofficio  powers  of  the  president 
can  he  assign  property  for  debts 
or  for  the  benefit  of  creditors,  as 
this  is  not  a  disposition  of  it  in 
the  ordinary  course  of  business. 
Wagg-Anderson  Woolen  Co.  v. 
Lesher,  78  111.  App.  678,  which 
case  see  generally  as  to  authority 
of  officers. 

Where  the  holder  of  a  note 
knows  that  it  has  been  indorsed 
for  accommodation  by  an  officer 
of  a  corporation  not  authorized  to 
do  so,  the  holder  cannot  recover 
against  the  corporation.  Farmer 


Misc.  314,  57  N.  Y.  Supp.  821. 

69  Parol  evidence  cannot  be  in- 
troduced to  vary  written  assign- 
ment of  a  life  policy.  Doty  v. 
Dickey,  29  Ky.  Law  Rep.  900,  96 
S.  W.  Rep.  544. 

A  written  instrument  being  un- 
ambiguous, parol  evidence  is  in- 
admissible to  explain  its  terms. 
Flynn  v.  Butler,  189  Mass.  377, 
75  N.  E.  Rep.  730. 

Where  an  assignment  by  a  debtor 
for  the  benefit  of  creditors  is  clear 
and  unambiguous,  no  parol  evi- 
dence can  be  admitted  to  prove 
that  the  consideration  for  the  as- 
signment was  the  discharge  of  the 
indebtedness.  Hammond  v.  Pink- 
ham,  149  Mass.  356,  21  N.  E.  Rep. 
871. 

Where  the  plaintiff  assigns  all 
his  remaining  interest  in  a  judg- 
ment in  partition,  which  interest 
was  a  balance  due  after  sale,  it 
cannot  be  proved  by  parol  evidence 
that  he  intended  to  include  rents 
subsequently  accruing  pending  an 
appeal  from  the  judgment  and  be- 
fore the  sale.  Kalteyer  v.  Wipff 
(Tex.  Civ.  App.),  65  S.  W.  Rep. 
207. 

59a  McMaster  v.  President,  etc., 
of  Ins.  Co.  of  N.  A.,  55  N.  Y.  222; 


ACTIONS   BY   AND   AGAINST  ASSIGNEES 


33 


the  rule,  as  now  understood,  forbids  neither  the  assignee  nor 
the  debtor  to  give  parol  evidence  to  vary  either  the  con- 
tract sued  on  or  the  assignment,  unless  they  are  both  parties 
to  the  same  instrument,  or  have  come  under  the  obligations 
of  parties,  or  the  agreement  is  one  which  the  law  requires  to 
be  in  writing.60  Thus,  a  person  not  a  party  to  a  policy  of  in- 


Coleman  v.  First  Nat.  Bk.,  53  N.  Y. 
388;  Badger  v.  Jones,  12  Pick.  321; 
Railroad  Co.  v.  Trimble,  10  Wall. 
367. 

Where  a  principal  by  a  written 
assignment  duly  assigns  certificates 
of  stock  to  his  agent,  parol  evidence 
as  to  admissions  made  by  the  agent 
tending  to  prove  that  the  stock 
was  the  principal's  property  which 
the  agent  had  appropriated  to  his 
own  use  without  the  principal's 
consent,  is  admissible  if  there  is  no 
evidence  that  the  agent  paid  any- 
thing for  the  stock  or  that  it  was  a 
gift  to  him.  McDonald  v.  Danahy, 
196  111.  133, 63  N.  E.  Rep.648,affi'g 
96  111.  App.  380. 

Where  there  is  a  parol  agree- 
ment of  employment,  and  a  writ- 
ten resolution  of  the  board  of  direc- 
tors of  the  employer  is  merely  a 
step  in  such  agreement,  parol  evi- 
dence is  admissible.  Rochester 
Folding  Box  Co.  v.  Browne,  55 
N.  Y.  App.  Div.  444,  66  N.  Y. 
Supp.  867,  appeal  dismissed  166 
N.  Y.  635,  60  N.  E.  Rep.  1120. 

Plaintiff  assigned  in  writing  his 
part  interest  in  a  claim  to  defend- 
ant. At  the  time  of  the  assignment 
they  had  a  verbal  understanding 
that  if  the  defendant  collected  more 
than  the  part  interest  shown  in  the 
assignment  the  defendant  would 
return  the  excess  to  the  plaintiff. 


Oral  evidence  was  admitted  against 
the  objection  that  it  may  vary  a 
written  instrument.  Martin  v. 
Stone,  15  Cal.  App.  174,  113  Pac. 
Rep.  706. 

The  consideration  of  a  deed  may 
always  be  inquired  into  if  the  prin- 
ciples of  j  ustice  require  it.  Shackel- 
ford  v.  Orris,  135  Ga.  29,  68  S.  E. 
Rep.  838. 

Where  there  is  a  secret  agree- 
ment in  violation  of  the  conditions 
of  an  assignment  for  the  benefit  of 
creditors  and  in  violation  of  law, 
all  the  evidence  and  circumstances, 
in  the  case  may  be  considered  by 
the  jury.  Badge tt  v.  Johnson-Fife 
Hat  Co.,  29  C.  C.  A.  230,  85  Fed. 
Rep.  408. 

80  Furbush  v.  Goodwin,  25  N.  H. 
425,  446;  Dempsey  v.  Kipp,  61 
N.  Y.  462,  and  cases  cited.  But 
see  paragraph  20  below. 

Oral  evidence  is  admissible  to 
prove  additional  consideration  for 
an  unconditional  written  transfer 
of  notes  and  credits.  Martin  v. 
Rotan  Grocery  Co.  (Tex.  Civ. 
App.),  66  S.  W.  Rep.  212. 

Oral  evidence  is  admissible  to 
show  that  an  assignment  of  shares 
of  stock,  however  absolute  in  form, 
is  merely  a  pledge;  and  the  con- 
sideration and  the  purpose  of  the 
transaction  may  be  shown  in  the 
same  way.  Riley  v.  Hampshire 


34 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


surance,  but  holding  it  by  assignment,  or  as  one  to  whom, 
in  case  of  loss,  it  is  payable,  may  adduce  evidence  to  ex- 
plain it,  in  his  action  against  the  company.61 

17.  Equities  against  the  Assignee. 

The  assignee  of  a  non-negotiable  chose  in  action,  as  dis- 
tinguished from  the  bona  fide  transferee  of  negotiable  paper, 
takes  it  subject  to  all  equities,  whether  known  or  unknown 
to  the  assignee,62  existing  against  the  assignor  at  the  tune 


Co.  Nat.  Bank,  164  Mass.  482, 
41  N.  E.  Rep.  679. 

81  McMaster  v.  President,  etc.,  of 
Ins.  Co.  of  N.  A.,  55  N.  Y.  222,  234. 

Oral  evidence  is  admissible  to 
prove  who  was  intended  to  be  the 
beneficiary  of  a  life  insurance  pol- 
icy. Rudershauer  v.  Met.  Life  Ins. 
Co.,  18  Ohio  Cir.  Ct.  Rep.  609,  10 
Oh.  Cir.  Dec.  258. 

The  fact  that  an  assignment  by 
a  husband  and  wife  of  their  in- 
terest in  a  policy  of  life  insurance 
is  absolute  in  form  is  immaterial, 
and  the  consideration  and  purpose 
of  the  transaction  may  be  shown 
by  oral  evidence.  Kendall  v. 
Equitable  Life  Assur.  Soc.,  171 
Mass.  568,  51  N.  E.  Rep.  464. 

62  Evertson  v.  Evertson,  5  Paige, 
644. 

The  assignee  of  a  chose  in  action 
takes  it  subject  to  all  the  defenses 
which  could  have  been  set  up 
against  it  in  the  hands  of  the  as- 
signor. Williams  v.  Neely,  134  Fed. 
Rep.  1,  66  C.  C.  A.  171,  69  L.  R.  A. 
232;  Third  Nat.  Bank  v.  W.  &  A.  R. 
R.  Co.,  114  Ga.  890,  40  S.  E.  Rep. 
1016;  Gillette  v.  Murphy,  7  Okla. 
91,  54  Pac.  Rep.  413. 

The  assignee  of  a  claim  for  dam- 


ages for  street  opening  takes  it 
subject  to  a  contract  of  retainer  of 
the  attorney  who  conducted  the 
proceedings,  the  retainer  operating 
as  a  prior  assignment  of  a  percent- 
age of  the  award.  Flannery  v. 
Geiger,  46  N.  Y.  Misc.  619,  92  N. 
Y.  Supp.  785. 

The  assignee  of  a  claim  is  charge- 
able with  any  notice  or  knowledge 
of  fraudulent  acts  on  the  part  of 
the  debtor  affecting  the  collection 
of  the  debt  which  the  original 
debtor  possessed.  Fuller  v.  Horner, 
69  Kan.  467,  77  Pac.  Rep.  88. 

Assignee  of  a  bill  of  costs  takes 
it  subject  to  all  offsets  existing 
against  it  at  the  time  of  the  assign- 
ment. Northwestern,  etc.,  Bank 
v.  Rauch,  8  Ida.  50,  66  Pac.  Rep. 
807. 

The  acceptance  of  an  assignment 
of  a  balance  due  on  a  building  con- 
tract by  a  materialman  does  not 
preclude  him  from  asserting  his 
rights  under  the  contract  in  estab- 
lishing his  claim  against  the  fund 
due  the  contractor.  Independent 
School  Dist.  v.  Madris,  106  Iowa, 
295,  76  N.  W.  Rep.  794. 

In  New  York  it  has  been  held 
that  an  assignee  can  be  bound  by 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


35 


of  the  assignment,  in  favor  either  of  the  debtor,63  or  of  any 
person  who  had  succeeded  to  his  right  at  the  time  of  the 
assignment,64  and  even  latent  equities  n  favor  of  third  per- 


sons.0 

an  arrangement  which  is  made  by 
the  assignor  with  a  third  party 
subsequent  to  the  assignment, 
when  such  arrangement  is  based 
upon  a  valuable  consideration  and 
the  third  party  has  no  notice  of  the 
prior  assignment.  Smith  v.  Kissel, 
92  N.  Y.  App.  Div.  235,  87  N.  Y. 
Supp.  176,  affirmed  in  181  N.  Y. 
536,  73  N.  E.  Rep.  1133. 

The  application  of  the  rule  that 
an  assignee  of  a  non-negotiable 
contract  takes  subject  to  all  equi- 
ties, is  illustrated  in  Miers  v. 
Charles  H.  Fuller  Co.,  167  111.  App. 
49;  Edson  v.  Gates,  44  Mich.  253, 
6  N.  W.  Rep.  645;  National  Oil, 
etc.,  Co.  v.  Teel,  95  Tex.  586,  68 
S.  W.  Rep.  979;  Roberts  v.  Taven- 
ner,  48  W.  Va.  632,  37  S.  E.  Rep. 
576;  Gillette  v.  Murphy,  7  Okla. 
91,  54  Pac.  Rep.  413. 

At  common  law  the  bailee  was 
entitled  to  all  defenses  which  ac- 
crued against  the  bailor  before 
notice  of  assignment.  Stamford 
Compress  Co.  v.  Ft.  Worth  Natl. 
Bank,  105  Tex.  44,  143  S.  W.  Rep. 
1142,  144  S.  W.  Rep.  1130,  Ann. 
Cas.  1914  D.  1298. 

Fraud  committee  in  the  incep- 
tion of  a  debt  is,  in  its  nature, 
personal  between  the  contracting 
parties,  and  does  not  follow  the  as- 
signment of  the  debt.  Thwing  v. 
Winkler,  13  Okla.  643,  75  Pac.  Rep. 
1127. 

63  Murray  v.  Gouverneur,  2  Johns. 
Cas.  438;  Clute  v.  Robinson,  2 


Johns.  595,  and  cases  cited  in  1 
Abb.  N.  Y.  Dig.,  2d  ed.  305. 

A  release  of  a  claim  executed  by 
plaintiff's  assignor  hi  favor  of  the 
defendant  prior  to  the  assignment 
can  be  interposed  as  a  defense  to 
the  plaintiff's  action  on  the  claim. 
Castor  v.  Bernstein,  2  Cal.  App. 
703,  84  Pac.  Rep.  244.  The 
assignee  of  an  option  on  an  inter- 
est in  land  is  not  protected 
against  defects  which  could  be 
asserted  against  his  assignor.  Pro- 
tection extends  only  to  purchasers 
of  the  legal  title  to  land  for 
valuable  consideration.  Nat.  Oil, 
etc.,  Co.  v.  Teel,  95  Tex.  586,  68 
S.  W.  Rep.  979. 

Where  the  payee  of  an  order  is 
not  entitled  to  payment  because 
he  had  not  completed  the  work  for 
which  it  was  given,  his  assignee  is 
in  no  better  position.  Van  Akin  v. 
Dunn,  117  Mich.  421,  75  N.  W. 
Rep.  938. 

84  Hartley  v.  Tatham,  2  Abb.  Ct. 
App.  Dec.  333;  Frost  v.  Yonkers 
Savings  Bank,  70  N.  Y.  553,  26 
Am.  Rep.  627;  Andrews  v.  Gillespie, 
47  N.  Y.  487. 

85  Green  v.  Warnick,  64  N.  Y.  224, 
and  cases  cited,  overruling  Murray 
v.  Lylburn,  2  Johns.  Ch.  441,  and 
other  cases  to  the  contrary. 

If  a  depository  of  trust  funds  ap- 
propriates them  to  the  payment  of 
his  individual  debt  to  the  bank, 
the  latter  having  notice  of  the  char- 
acter of  the  fund,  is  affected  with 


36 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


18.  Bona  Fide  Purchaser. 

But  the  doctrine  of  equitable  estoppel  supports  the  title 
of  a  bona  fide  purchaser  for  value,  of  a  non-negotiable  cause 
of  action,  from  one  upon  whom  the  owner  has  conferred  the 
apparent  absolute  ownership,  when  the  purchase  is  made 
upon  the  faith  of  such  appearance.66  Yet  evidence  showing 
circumstances  sufficient  to  have  put  the  purchaser  upon 
inquiry  will  charge  him  with  the  same  notice  that 
is  chargeable  to  his  assignor  in  respect  to  the  same  matters.67 

19.  Notice  to  Debtor. 

If  the  cause  of  action  was  complete  against  the  debtor 
before  the  assignment  was  made,  notice  to  the  debtor  of  the 


knowledge  of  the  misappropriation, 
and  may  be  compelled  to  refund. 
Columbia  Finance  &  Trust  Co.  v. 
First  Nat.  Bank,  116  Ky.  364,  76 
S.  W.  Rep.  156,  25  Ky.  L.  Rep. 
561. 

"Moore  v.  Metropolitan  Bank, 
55  N.  Y.  41;  Green  t>.  Warnick, 
64  Id.  224. 

The  assignee  of  a  non-negotiable 
bill  of  lading  takes  it  subject  to  all 
the  equities  existing  between  the 
parties  whose  names  appear  on  it, 
but  not  to  the  equities  of  third  par- 
ties not  connected  with  the  bill. 
Bristol  Nat.  Bank  v.  Baltimore 
&  Ohio  R.  R.  Co.,  99  Md.  661,  59 
Atl.  Rep.  134,  105  Am.  St.  Rep. 
321. 

Fraud  committed  in  the  incep- 
tion of  a  debt  is  personal  between 
the  contracting  parties  and  does 
not  follow  the  assignment  of  the 
debt.  Thwing  v.  Winkler,  13 
Okl.  643,  75  Pac.  Rep.  1126. 

67  Commercial  Bank  v.  Colt,  15 
Barb.  506;  and  see  Evans  v.  Ellis, 


5  Den.  640,  affi'g  Ellis  v.  Messer- 
vie,  11  Paige,  467.  The  purchaser 
of  a  bond  and  mortgage  who  fails 
to  require  the  production  of  the 
bond,  is  chargeable  with  notice  of 
any  defect  in  the  assignor's  title 
thereto.  Kellogg  v.  Smith,  26  N. 
Y.  18.  As  to  appearances  of  altera- 
tions, see  Birdsall  v.  Russell,  29 
N.  Y.  220. 

The  assignee  of  a  certificate  exe- 
cuted by  the  treasurer  of  a  cor- 
poration stating  that  it  holds  cer- 
tain orders  is  bound  to  inquire 
into  the  circumstances  and  know 
all  the  facts  including  the  authority 
of  the  treasurer  to  issue  it,  and 
neglecting  to  do  this  he  takes  it 
subject  to  all  existing  equities. 
Louisville  Water  Co.  v.  Fullenlove, 
12  Ky.  Law  Rep.  556. 

Where  the  circumstances  are 
peculiar,  it  is  the  duty  of  the  pros- 
pective assignee  to  make  inquiries 
and  know  the  facts.  Louisville 
Water  Co.  v.  Fullenlove,  12  Ky. 
Law  Rep.  556. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


37 


assignment,  need  not  be  proved,68  except  for  the  purpose  of 
shutting  out  evidence  of  subsequent  dealings  by  the  debtor 
with  the  assignor  in  reduction  of  the  liability.  Notice  of  an 
assignment  of  a  demand  or  obligation,  or  a  part  thereof, 
given  to  the  debtor,  fixes  the  rights  of  the  parties,  and  pro- 


68  Muir  v.  Schenck,  3  Hill,  228. 
See  also  Doughty  v.  Weston,  152 
N.  Y.  Supp.  1035,  90  Misc.  304. 

Where  accounts  received  are 
transferred  as  collateral  security 
for  a  loan,  notice  to  the  debtors 
is  not  necessary  to  make  the  trans- 
fer effectual  as  against  the  creditors 
of  the  borrower.  Young  v.  Upson, 
115-  Fed.  Rep.  192. 

The  assignment  of  future  wages 
under  an  existing  contract  is  valid 
if  founded  on  a  consideration  and  if 
not  made  to  hinder  or  defraud  cred- 
itors. Notice  to  debtor  unneces- 
sary. Quigley  v.  Welter,  95  Minn. 
383, 104  N.  W.  Rep.  236. 

As  to  third  persons,  the  assign- 
ment of  a  chose  in  action  is  valid 
without  notice  to  the  debtor. 
Thayer  v.  Daniels,  113  Mass.  129. 

Lack  of  notice  to  the  debtors 
does  not  invalidate  a  transfer  of 
their  accounts  to  third  parties. 
In  re  Hawley  Down-Draft  Furnace 
Co.,  238  Fed.  Rep.  122,  151  C.  C. 
A.  198. 

An  allegation  that  no  notice  of 
assignment  of  a  claim  by  the  third 
party  was  given  to  the  plaintiff  is 
immaterial.  Crosby  v.  Kropf,  33 
N.  Y.  App.  Div.  446,  54  N.  Y. 
Supp.76. 

As  between  an  assignee  of  a  fraud 
under  an  equitable  assignment  and 
the  receiver  of  the  assignor,  an 
insolvent,  notice  of  assignment  to 


the  holder  of  the  fund  is  not  neces- 
sary to  perfect  the  title  of  the  as- 
signee. Cogan  v.  Conover  Mfg. 
Co.,  69  N.  J.  Eq.  809,  64  Atl.  Rep. 
973,  115  Am.  St.  Rep.  629. 

Notice  to  the  debtor  of  the  as- 
signment of  a  chose  in  action  is 
not  necessary  to  the  validity  of 
the  assignment.  Virginia,  etc., 
Chemical  Co.  v.  McNair,  139  N.  C. 
326,  51  S.  E.  Rep.  949. 

The  rights  of  an  assignee  of  a 
chose  in  action  who  does  not  give 
notice  to  the  debtor  until  after  the 
assignor  dies  are  not  defeated  as 
against  the  administrator  of  the 
assignor.  Shepherd  v.  Penn.  Ry. 
Co.,  29  Pa.  Super.  Ct.  291. 

An  assignment  of  an  account 
with  authority  to  collect  it  and 
apply  the  proceeds  in  payment  of 
the  debt  due  from  assignor  to 
assignee,  is  valid  without  notice 
to  the  assignor's  debtor,  and  takes 
precedence  over  a  subsequent  at- 
tachment of  the  funds  in  the  hands 
of  the  debtor  by  a  creditor  of  the 
assignor.  Marsh  v.  Garney,  69 
N.  H.  236,  45  Atl.  Rep.  745. 

The  defense  that  a  chose  in  ac- 
tion was  assigned  without  notice 
to  defendant  debtor  is  bad  in  the 
absence  of  any  agreement  requiring 
such  notice  or  any  allegation  of  in- 
jury arising  from  want  of  such 
notice.  Knickerbocker  Trust  Co. 
v.  Coyle,  139  Fed.  Rep.  792. 


ACTIONS   BY   AND   AGAINST  ASSIGNEES 


tects  the  assignee.69  If  the  assignee  proves  such  notice,  sub- 
sequent dealings  between  the  original  parties  are  not  relevant 
against  him,70  but  the  burden  of  proving  such  notice  is  upon 
the  assignee  who  seeks  to  avail  himself  of  it.71  Proof  of 


89  Schilling  v.  Mullen,  55  Minn. 
122,  43  Am.  St.  Rep.  475,  56  N.  W. 
Rep.  586. 

Where  future  wages  are  assigned, 
the  employer  can  only  interpose 
such  defenses  as  existed  in  his 
favor  prior  to  his  receiving  notice 
of  the  assignment.  Peterson  v. 
Ball,  121  Iowa,  544,  97  N.  W.  Rep. 
79. 

Where  a  contractor  for  water- 
works for  a  city  gives  an  order 
upon  the  city  for  payment  to  a 
third  person  of  a  sum  out  of  money 
due  the  contractor,  the  filing  of  such 
order  with  the  proper  accounting 
officer  of  the  city  is  notice  and  con- 
stitutes an  equitable  assignment  of 
funds  in  the  possession  of  the  city 
due  the  contractor.  Dickerson  v. 
City  of  Spokane,  26  Wash.  292,  66 
Pac.  Rep.  381. 

Where  a  debtor  received  bills 
bearing  notice  of  the  assignment 
of  the  account  he  could  not  escape 
liability  by  returning  purchased 
goods  to  the  assignor.  Eibschutz 
v.  Ginsberg,  163  N.  Y.  Supp.  160. 

70  Myers  v.  Davis,  22  N.  Y.  489, 
rev'g  26  Barb.  367. 

A  payment  by  a  debtor  to  his 
creditor  after  notice  of  assignment 
does  not  discharge  the  debt.  Ernst 
v.  Estey  Wire  Works  Co.,  20  N.  Y. 
Misc.  365,  45  N.  Y.  Supp.  932. 

A  judgment  in  a  suit,  brought 
by  a  debtor  against  his  creditor 
after  an  assignee  of  the  creditor 
had  begun  suit  against  the  debtor, 


cannot  be  set  up  against  the  as- 
signee as  res  adjudicate, .  Kahn  v. 
Richard  L.  Walsh  Co.,  72  Misc. 
20,  129  N.  Y.  Supp.  137. 

The  payment  by  an  adminis- 
tratrix of  an  assigned  account 
against  the  estate  of  the  intestate 
is  a  complete  defense  against  a 
prior  assignment  of  which  she  had 
no  notice.  Monticello  Sav.  Bank 
v.  Stuart,  73  Mo.  App.  279. 

Where  the  maker  of  a  non- 
negotiable  instrument  pays  the 
same  in  good  faith  to  the  payee, 
not  having  notice  of  any  assign- 
ment, such  payment  extinguishes 
the  debt.  Chapman  v.  Sterner, 
5  Kan.  App.  326,  48  Pac.  Rep.  607. 

Where  the  insured  under  a  policy 
of  life  insurance  reserves  the  right 
to  change  the  beneficiary  with  the 
consent,  of  the  company,  and  sends 
notice  of  a  change  to  the  company 
and  dies  before  the  latter  gives  its 
consent,  which  is  delayed  through 
the  company's  negligence,  the  new 
beneficiary  is  entitled  to  the  fund. 
In  re  Doringh,  20  R.  I.  459,  40 
Atl.  Rep.  4. 

71  Hermans  v.  Ellsworth,  64  N.  Y. 
161,  3  Hun,  473,  and  cases  cited. 
As  to  the  necessity  of  notice  as 
against  third  persons,  see  Thayer  v. 
Daniels,  113  Mass.  129. 

Evidence  by  a  trustee  in  bank- 
ruptcy that  a  corporation  was 
technically  insolvent  during  its 
dealings  with  a  bank  is  incompetent 
as  proof  that  the  bank  had  notice 


ACTIONS   BY   AND    AGAINST   ASSIGNEES 


39 


general  notoriety  is  usually  admissible  as  tending  to  prove 
notice  of  a  fact,  when  such  notice  is  a  material  inquiry, 
though  it  is  not  admissible  to  prove  the  fact  itself.72 

20.  Assignment  for  Purpose  of  Suit. 

If  plaintiff  proves  a  written  assignment  absolute  on  its 
face,  defendant  cannot  successfully  impeach  plaintiff's  title, 
by  adducing  parol  evidence  to  show  that  it  was  made  upon 
condition  that  part  of  the  claim  assigned  should,  when  col- 
lected, be  paid  to  the  assignor.73 

21.  — or  as  Collateral  Security. 

Where  the  plaintiff  holds  the  cause  of  action  as  collateral 
security  for  a  debt  due  him  from  a  third  person,  the  burden 


of  it.   Bunnell  v.  Bronson,  78  Conn. 
679,  63  Atl.  Rep.  396. 

72  Woods    v.    Montevallo,    etc., 
Coal  Co.,  84  Ala.  560,  5  Am.  St. 
Rep.  393,  3  So.  Rep.  475;  Louis- 
ville, etc.,  R.  Co.  ».  Hall,  87  Ala. 
708, 13  Am.  St.  Rep.  84,  6  So.  Rep. 
277. 

General  information  or  a  mere 
suspicion  that  a  creditor  might 
have  made  an  assignment  does  not 
render  the  debtor  liable  to  an  as- 
signee. Skobis  v.  Ferge,  102  Wis. 
22,  78  N.  W.  Rep.  426. 

The  defendant  cannot  be  bound 
by  any  assignment  which  had  not 
been  brought  to  his  notice,  where 
there  is  nothing  to  show  that  he 
had  any  knowledge  of  the  alleged 
assignment  prior  to  the  trial.  Russ 
v.  Tuttle,  158  Cal.  226,  110  Pac. 
Rep.  813. 

73  Durgin  v.  Ireland,  14  N.  Y.  (4 
Kern.)  322.    But  he  may,  for  the 
purpose  of  showing  the  bias  of  the 
assignor,  if  the  assignor  has  testi- 
fied for  plaintiff.    Moore  v.  Viele, 


4  Wend.  420.  The  transfer  of  the 
legal  title  of  a  claim  is  sufficient  to 
enable  the  assignee  to  maintain  an 
action  to  recover  thereon,  even 
though  the  assignor  expects  to 
share  in  the  recovery.  Hecht  v. 
Mothner,  4  Misc.  Rep.  (N.  Y.) 
536;  Curran  v.  Weiss,  6  Misc.  Rep. 
(N.  Y.)  138;  Sheridan  v.  Mayor, 
68  N.  Y.  30. 

Where  a  claim  has  been  assigned 
by  an  instrument  under  seal,  the 
adverse  party  cannot  inquire  into 
the  consideration  nor  show,  by  the 
assignor,  that  he  is  still  interested 
in  the  claim.  Livingston  v.  Spero, 
41  N.  Y.  Supp.  606, 18  N.  Y.  Misc. 
243. 

Plaintiff  was  the  assignee  for 
collection  of  certain  claims  and  as 
such  was  entitled  to  maintain  the 
action.  Hankwitz  v.  Barrett,  143 
Wis.  639,  128  N.  W.  Rep.  430, 
citing  Wooliscroft  v.  Norton,  15 
Wis.  198;  Gates  v.  Northern  P.  Ry. 
Co.,  64  Wis.  64,  24  N.  W.  Rep. 
494. 


40 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


is  upon  the  defendant  of  proving  any  defense  arising  out  of 
the  state  of  dealings  between  the  plaintiff  and  his  principal 
debtor — as  for  instance  that  the  principal  debt  has  been 
paid,74  or  is  not  equitably  enforceable  as  against  the  de- 
fendant.75 

22.  Assignees  in  Insolvency. 

In  an  action  by  an  assignee  hi  insolvency,  as  such,  on  a 
cause  of  action  which  he  acquired  by  the  assignment,  the 
plaintiff  is  bound  to  prove  that  he  is  such  assignee,  even 
though  the  defendant  only  pleads  the  general  issue.76  For 
this  purpose  an  insolvent  assignment,  in  the  form  of  a  deed 
by  the  insolvent  to  his  assignee,  expressing  a  pecuniary 
consideration,  is  admissible  in  evidence  without  proving  the 
insolvency  proceedings,  although  it  recites  their  existence 
and  purports  to  be  made  pursuant  to  a  judge's  order.77  While 


"Sheldon  v.  Wood,  2  Bosw. 
267. 

The  defense  of  payment  before 
notice  of  assignment  must  be 
averred;  and  there  must  be  a  dis- 
tinct denial  of  notice  before  pay- 
ment. Smith  v.  Orton,  131  U.  S. 
(appendix)  xxv,  18  Law  ed.  62. 

"Hogarty  v.  Lynch,  6  Bosw. 
138.  Parol  evidence  as  to  the 
agreed  mode  of  payment  of  the 
debt,  admissible.  Hildebrandt  v. 
Crawford,  6  Lans.  502,  507.  For 
the  peculiar  application  of  the 
rules  as  to  collaterals,  in  case  of 
negotiable  paper,  see  chapter  on 
Actions  on  Bitts,  Notes  and  Checks. 
One  who  has  assigned  a  lien  as 
collateral  security,  may,  if  he  have 
an  existing  interest  in  it,  maintain 
an  action  for  its  enforcement,  and 
the  assignee  is  a  necessary  party  to 
such  an  action.  Ridgway  v.  Bacon, 
72  Hun  (N.  Y.),  211;  Selleck  ». 


Manhattan  Fire  Alarm  Co.,  121 
N.  Y.  Supp.  587. 

It  is  competent  to  show  in  an 
action  at  law  that  an  assignment 
set  up  by  defendant  and  absolute 
on  its  face,  was  made  as  security. 
Resort  to  equity  is  not  necessary 
unless  equitable  relief  is  demanded. 
Cushman  v.  Family  Fund  Society, 
13  N.  Y.  Supp.  428. 

76  Best  v.  Strong,  2  Wend.  319. 
An  executor  of  an  assignee  for  the 
benefit  of  creditors  is  not  entitled 
to  be  substituted  as  plaintiff  in  an 
action  brought  by  the  decedent 
as  such  assignee,  unless  the  execu- 
tor has  been  substituted  as  as- 
signee. Steinhouser  v.  Mason,  135 
N.  Y.  635,  32  N.  E.  Rep.  69. 

"Rockwell  v.  Brown,  54  N.  Y. 
210,  rev'g  33  Super.  Ct.  (1  J.  &  S.) 
380. 

See  also  Rockwell  v.  McGovern, 
69  N.  Y.  294. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


41 


prior  fraudulent  transfers  by  the  assignor  do  not  necessarily 
avoid  the  assignment,  they  may  be  considered  in  determin- 
ing whether  there  was  any  fraud  hi  the  assignment  hi  ques- 
tion.78 

23.  — in  Bankruptcy. 

The  title  of  an  assignee  in  bankruptcy  is  conclusively 
proved,  alike  hi  a  State  court  as  hi  a  court  of  the  United 
States,79  by  a  copy  of  the  assignment,  duly  certified  by  the 
clerk  of  the  court  under  its  seal.80  But  unless  he  produces 
such  copy,  or  the  original,  or  accounts  for  its  absence,  parol 
evidence  of  his  title  is  not  admissible.81  It  is  not  necessary 


"Loos  v.  Wilkinson,  110  N.  Y. 
195,  18  N.  E.  Rep.  99. 

In  an  action  to  set  aside  a  sale 
made  within  three  months  of  in- 
solvency proceedings,  unless  the 
debtor  wastin  fact  insolvent,  it  can- 
not be  held  that  his  grantee  had 
reasonable  cause  to  believe  him 
insolvent.  Cutler  v.  Dunn,  68 
N.  H.  394,  44  Atl.  Rep.  536. 

Deeds  given  by  the  insolvent  or 
recorded  during  the  same  year, 
some  before  and  some  after  the 
pretended  sale  of  chattels  to  the 
plaintiff,  are  admissible  in  evi- 
dence, as  bearing  upon  a  contem- 
plated insolvency.  Stuart  v.  Red- 
man, 89  Me.  435,  36  Atl.  Rep.  905. 

Whether  a  homestead  right  in 
the  insolvent  which  gives  the 
tenant  no  right  of  entry  can  be 
relied  on,  in  the  case  of  a  writ  of 
entry  brought  by  the  assignee  in 
insolvency  against  a  grantee  of  the 
insolvent  on  the  ground  that  the 
conveyance  was  made  to  defraud 
creditors.  Copeland  v.  Sturtevant, 
156  Mass.  114,  30  N.  E.  Rep. 
475. 


79  Cone  v.  Purcell,  56  N.  Y.  649. 
The  State  courts  will  take  judicial 
notice  of  the  U.  S.  Bankrupt  Act. 
Wheelocky.  Lee,  15  Abb.  Pr.N.S.24. 

Where  the  assignee  in  his  com- 
plaint alleges  his  election  and  that 
the  insolvent's  property  was  as- 
signed to  him,  in  the  absence  of 
demurrer,  it  will  be  presumed  that 
he  had  previously  qualified  and 
given  the  statutory  bond  as  a  con- 
dition precedent  to  the  assignment. 
Farnsworth  v.  Sutro,  136  Cal.  241, 
68  Pac.  Rep.  705. 

80  Bump  on  Bankr.  139;  Blumen- 
steii  on  Bankr.  228. 

Properly  certified  copies  of  the 
adjudication  and  order  approving 
the  bond  of  the  trustee  are  admis- 
sible in  evidence  without  proof  of 
service  of  process  on  either  of  the 
insolvent  partners,  even  where 
there  is  evidence  to  show  that  one 
of  them  had  been  outside  the 
jurisdiction  since  prior  to  the  in- 
ception of  the  bankruptcy.  Whit- 
son  v.  Farber  Bank,  105  Mo.  App. 
605,  80  S.  W.  Rep.  327. 

"Burk  v.  Winters,  28  Ark.  6, 


42 


ACTIONS   BY   AND    AGAINST   ASSIGNEES 


for  him  to  show  the  steps  in  the  proceedings,  nor  the  juris- 
diction of  the  court  over  the  proceedings  or  the  person  of  the 
insolvent,82  nor  a  record  of  the  assignment  as  a  deed  of 
lands,83  nor  can  the  existence  or  sufficiency  of  the  debt  of 
the  petitioning  creditor  be  collaterally  drawn  in  question.84 
The  entire  proceedings  in  a  bankruptcy  c  se  are  not  re- 
garded as  constituting  an  integral  record ;  but  copies  of  such 
papers  as  in  any  way  relate  to  the  matter  in  question,  certi- 
fied to  be  such,  are  admissible  without  other  parts  of  the 
proceedings.86 


and  cases  cited;  s.  c.,  15  Bankr.  R. 
140. 

A  discharge  in  bankruptcy  bars 
recovery  on  an  assignment  of 
wages  to  be  earned  under  a  future 
employment.  Draeger  r.  Wiscon- 
sin Steel  Co.,  194  111.  App.  440. 

82  Bump  on  Bankr.  139. 

••  Phillips  v.  Hembold,  26  N.  J. 
Eq.  202. 

"Sloan  v.  Lewis,  22  Wall. 
150. 

Nor  can  the  court  pass  upon  the 
priority  of  claims.  Davis  v.  Louis- 
ville Trust  Co.,  181  Fed.  Rep.  10, 
104  C.  C.  A.  24,  30  L.  R.  A.  N.  S. 
1011. 

An  adjudication  of  bankruptcy 
cannot  be  impeached  collaterally 
on  the  ground  that  the  petitioner 
was  not  a  creditor.  Huttig  Mfg. 
Co.  v.  Edwards,  160  Fed.  Rep.  619, 
87  C.  C.  A.  521. 

*&  Michener  v.  Payson,  13  Bankr. 
R.  50;  s.  P.  Ransom  v.  Wheeler,  12 
Abb.  Pr.  139. 

The  verified  schedules  of  a  bank- 
rupt are  competent  evidence  on 
the  question  of  his  insolvency,  not 
only  when  the  petition  was  filed, 
but  also  when  an  alleged  preferen- 


tial conveyance  was  made.  In  re 
Mandel,  127  Fed.  Rep.  863,  aff'd 
in  68  C.  C.  A.  546,  135  Fed.  Rep. 
1021. 

The  adjudication  in  bankruptcy 
is  properly  admissible  in  evidence 
as  showing  insolvency  and  intended 
preference.  Calkins  v.  Farmers', 
etc.,  Bank,  99  Mo.  App.  509,  73 
S.  W.  Rep.  1098. 

Where  a  trustee  in  bankruptcy 
attempts  to  set  aside  as  fraudulent 
a  conveyance  of  real  estate  by  the 
bankrupt  to  a  third  person  through 
his  wife,  and  within  four  months  of 
filing  his  petition  in  bankruptcy, 
the  petition  and  schedule  attached 
to  it  are  inadmissible  against  the 
wife  without  her  consent,  and  they 
are  incompetent  to  prove  insol- 
vency of  the  bankrupt.  Halbert  /'. 
Pranke,  91  Minn.  204,  97  N.  W. 
Rep.  976. 

A  judgment  in  involuntary  bank- 
ruptcy proceedings  that  the  debtor 
was  not  insolvent  is  not  competent 
evidence  to  prove  his  solvency  four 
months  preceding  the  period  cov- 
ered by  the  judgment.  Hibbs  v. 
Marpe,  84  Minn.  10,  86  N.  W. 
Rep.  612. 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


43 


24.  Purchaser  from  Official  Assignee. 

One  claiming  as  a  purchaser  from  an  assignee  in  bank- 
ruptcy should  be  prepared  to  prove  the  assignee's  title,  by 
producing  the  assignment  or  a  duly  certified  copy,  and  to 
prove  his  own  title  by  producing  the  written  assignment  from 
the  assignee,  if  any,  or  to  account  for  their  absence.86  A  copy 
of  the  bankrupt's  schedule  is  held  not  by  itself  sufficient 
evidence  to  prove  the  bankrupt's  admission  of  the  debt  men- 
tioned therein,  because  but  part  of  the  record.87 

25.  Assignees  for  Benefit  of  Creditors. 

The  assignee's  title  is  to  be  proved  by  producing  the  assign- 
ment, or  a  certified  copy  of  it.  This  evidence  is  admissible 
under  an  allegation  of  an  assignment  to  plaintiff,  without 
stating  that  it  was  hi  trust  for  creditors,  unless  defendant 
shows  that  he  has  been  misled  to  his  prejudice.88  The  assent 


88  Files  v.  Harrison,  29  Ark.  307, 
316. 

A  deed  of  an  assignee  of  a  bank- 
rupt is  competent  evidence  of  title 
even  though  not  sealed,  where  the 
bankruptcy  proceedings  show  that 
he  had  authority  to  execute  it 
Westfelt  v.  Adams,  131  N.  C.  379, 
42  S.  E.  Rep.  823. 

Where  a  person  fraudulently  con- 
veys property  to  a  grantee  and 
subsequently  becomes  an  involun- 
tary bankrupt,  and  then  the  trus- 
tee recovers  the  property  and  sells 
it,  and  the  bankrupt  indirectly 
buys  it  in,  whatever  title  he  gets 
accrues  to  the  benefit  of  the  grantee. 
He  cannot  take  advantage  of  his 
own  fraud;  his  title  at  first  was  not 
good,  but  later  it  was  cured  and 
the  grantee  is  entitled  to  it.  Hall- 
burton  v.  Slagle,  130  N.  C.  482, 
41  S.  E.  Rep.  877. 

87  Wilson     v.     Harper,     5     So. 


Car.  294.    But  see  paragraph  23. 

An  allegation  of  assignment  for 
the  benefit  of  creditors  is  sufficient 
to  allow  proof  of  such  fact.  Rollins 
v.  Humphrey,  98  Wis.  66,  73  N.  W. 
Rep.  331. 

A  person  cannot  maintain  a  suit 
in  his  own  name  as  assignee  of  a 
claim  for  money  had  and  received 
for  the  use  of  another,  except  where 
there  has  been  a  general  assign- 
ment to  him  for  the  benefit  of 
creditors.  Hauze  v.  Powell,  90 
111.  App.  448. 

""Hoogland  v.  Trask,  6  Robt. 
540;  Lauve's  Case,  6  La.  Ann.  530. 

The  acceptance  by  the  creditors 
of  a  deed  for  their  benefit  will  be 
prima  facie  presumed,  unless  within 
a  reasonable  time  after  notice  of 
the  grant  they  disaffirm  or  refuse 
to  accept  the  grant.  Kingman  v. 
Cornell-Tebbetts  Mach.,  etc.,  Co., 
150  Mo.  282,  51  S.  W.  Rep.  727. 


44 


ACTIONS  BY  AND   AGAINST  ASSIGNEES 


of  the  cestuis  que  trustent  to  a  valid  assignment  for  their 
benefit  is  presumed  as  matter  of  law,  unless  there  is  evidence 
to  the  contrary.89  And  where,  as  in  some  States,  assent  is  not 
presumed,  it  is  not  necessary  to  prove  that  all  assented,  un- 
less the  assent  of  all  is  expressly  required  by  the  contract  or 
by  local  law.  The  assent  of  a  creditor  may  be  proved  by  the 
act  of  his  attorney,  and  that  of  a  firm  by  the  act  of  a  part- 
ner.90 If  the  plaintiff's  right  depends  on  the  power  of  the 


89  Burrill  on  Assignments,  3d  ed. 
381;  Van  Buskirk  v.  Warren,  4 
Abb.  Ct.  App.  Dec.  458. 

The  assent  and  acceptance  of  the 
creditors  is  presumed,  and  the  as- 
signment cannot  be  avoided  be- 
cause of  the  fraud  of  the  assignor, 
if  neither  the  assignee  nor  creditors 
have  knowledge  or  notice  of  such 
fraud  at  the  tune  of  their  assent 
and  acceptance.  Robinson,  etc., 
Co.  v.  Thomason,  113  Ala.  526,  20 
So.  Rep.  951. 

If  beneficial  to  them  the  credi- 
tors are  presumed  to  accept  assign- 
ment made  for  their  benefit. 
Fearey  v.  O'Neill,  149  Mo.  467, 
50  S.  W.  Rep.  918,  73  Am.  St. 
Rep.  440. 

The  assent  of  the  creditors  is 
presumed  even  if  they  have  no 
knowledge  of  the  assignment. 
Smith  v.  Henell,  11  App.  Gas.  Dist. 
of  Col.  425. 

The  actual  assent  of  creditors 
to  an  assignment  made  for  their 
benefit  is  not  necessary  to  the 
validity  of  the  assignment.  Bill- 
ings v.  Parsons,  17  Utah,  22,  53 
Pac.  Rep.  730. 

The  acceptance  of  creditors  of 
assignment  for  their  benefit  will 
be  presumed  only  if  the  grant  is 
unconditional.  Gonzales  v.  Batts, 


20  Tex.  Civ.  App.  421,  50  S.  W. 
Rep.  403. 

The  assent  of  creditors  will  not 
be  presumed  if  the  assignment  is 
made  upon  conditions  which  may 
be  prejudicial  to  their  rights. 
Weston  v.  Nevers,  72  N.  H.  65, 
54  Atl.  Rep.  703. 

A  general  assignment  for  the 
benefit  of  creditors  neither  stays 
nor  suspends  the  remedies  of  cred- 
itors of  the  assignor;  they  have  the 
right  notwithstanding  the  assign- 
ment, to  examine  the  assignor,  as 
a  judgment  debtor,  in  supplemen- 
tary proceedings  and  inquire  into 
the  circumstances  of  the  assign- 
ment. In  re  Rutaced  Co.,  137 
N.  Y.  App.  Div.  716,  122  N.  Y. 
Supp.  454. 

90  Burrill  on  Assignments,  392. 

Where  the  assignment  provides 
that  the  assent  must  be  in  writing, 
an  oral  assent  accompanied  by  an 
agreement  for  a  written  assent, 
makes  the  assignment  binding. 
Roberts  v.  Norcross,  69  N.  H.  533, 
45  Atl.  Rep.  560. 

In  a  common  law  assignment  for 
the  benefit  of  creditors  the  time 
specified  in  which  creditors  must 
give  their  written  assent  is  of  the 
essence  of  the  contract.  A  creditor 
who  has  knowledge  of  the  time  in 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


45 


assignee  to  convert  or  apply  the  assets  to  the  purposes  of  the 
trust,  he  should  also  prove  the  filing  of  the  bond  and  other 
steps  which  the  statute  makes  a  condition  to  the  exercise  of 
that  power.91  If  the  assignor  omits  to  state  in  the  assignment 
his  residence  and  place  of  business,  his  identity  may  be 
determined  by  his  signature  to  the  assignment  and  the 
acknowledgment  thereof  before  an  officer  specified  hi  the 
statute.92 

26.  Testimony  of  Assignor. 
The  testimony  of  the  assignor  of  the  cause  of  action,  when 


which  to  assent  and  does  not  as- 
sent until  after  the  expiration  of 
the  period,  can  properly  be  ex- 
cluded from  being  a  party  to  the 
contract.  National  Bank  v.  Bailey, 
179  Mass.  415,  60  N.  E.  Rep. 
925. 

A  creditor's  acceptance  given 
after  the  four  months  within  which 
the  statute  requires  it  to  be  given, 
comes  too  late.  Moody  v.  Temple- 
man,  23  Tex.  Civ.  App.  374,  56 
S.  W.  Rep.  588. 

A  non-assenting  resident  credi- 
tor can  attach  the  property  of  the 
assignor,  where  the  assignor  is  a 
non-resident  and  makes  his  as- 
signment in  an  outside  jurisdic- 
tion. Weston  v.  Nevers,  72  N.  H. 
65,  54  Atl.  Rep.  703. 

91  Thrasher  v.  Bentley,  1  Abb. 
N.  Gas.  39;  Matter  of  Sheldon, 
173  N.  Y.  287,  65  N.  E.  Rep.  1096. 
See  also  Pearsall  v.  Nassau  Nat. 
Bank,  74  N.  Y.  App.  Div.  89,  77 
N.  Y.  Supp.  11;  Boese  v.  King,  78 
N.  Y.  471. 

"Dutchess  County  Mut.  Ins. 
Co.  t>.  Van  Wagonen,  132  N.  Y.  398, 
30  N.  E.  Rep,  971.  If  fraud  in 


such  an  instrument  is  charged 
the  onus  is  upon  the  party  charging 
it  to  show  affirmatively  some  illegal 
provision,  or  some  act  consciously 
or  purposely  done  which  is  incon- 
sistent with  an  honest  purpose. 
Roberts  v.  Buckley,  145  N.  Y.  215, 
39  N.  E.  Rep.  966.  When  the  in- 
strument is  assailed  as  fraudulent 
because  it  provides  for  the  pay- 
ment of  a  fictitious  debt,  it  must 
appear  that  the  assignor,  with  a 
fraudulent  purpose  in  view,  know- 
ingly and  consciously  directed  the 
payment  of  a  claim  which  to  his 
knowledge  had  no  existence,  either 
in  whole  or  in  some  substantial 
part.  (Id.)  Laying  in  large  supply 
of  goods  shortly  before  making  an 
assignment  for  the  benefit  of  credi- 
tors, for  the  purpose  of  enabling 
the  assignee  to  carry  on  the  busi- 
ness of  the  assignor,  raises  a  pre- 
sumption of  intention  to  delay, 
hinder  and  defraud  unpreferred 
creditors.  Albany  &  Rensselaer 
Iron  &c.  Co.  v.  Southern  Agricul- 
tural Works,  76  Ga.  135,  2  Am. 
St.  Rep.  26. 


46  ACTIONS   BY   AND   AGAINST   ASSIGNEES 

offered  by  the  assignee,  is  justly  regarded  by  the  law  as 
liable  to  scrutiny,  and  is  to  be  received  with  something  of  the 
same  caution  as  that  of  a  party  testifying  in  his  own  be- 
half; 93  and  where  the  adverse  party  is  an  executor,  adminis- 
trator, or  other  representative  of  one  deceased  or  otherwise 
incompetent  to  testify,  the  assignor,  equally  with  the  as- 
signee, is  excluded  from  testifying  to  personal  transactions  or 
communications  had  by  him  with  the  person  deceased  or 
otherwise  incapacitated.94  But  an  assignor's  testimony,  un- 
like that  of  a  party  testifying  in  his  own  behalf,  may  be 
sufficient,  without  corroboration,  to  justify  the  court  in 
taking  the  case  from  the  jury. 

The  bias  of  the  assignor  may  be  shown  by  proof  of  a  re- 
maining or  contingent  interest,95  but  not  by  inquiring  merely 
into  the  amount  of  the  consideration.  The  comparatively 
trifling  character  of  the  consideration  is  not  evidence  of  bias 
or  interest,  and  cross-examination  for  this  purpose  is  in  the 
discretion  of  the  court.96 

27.  Assignor's  Declarations  not  Competent  in  Favor  of 
Assignee. 

Admissions  and  declarations  of  the  assignor  are  not  com- 

M  Watkins  v.  Cousall,  1  E.  D.  Sav.  Fund  Soc.  v.  Hagerstown  Sav. 

Smith,  65;  Kenney  v.  Public  Admr.,  Bank,  36  Pa.  St.  498,  78  Am.  Dec. 

2  Bradf.  319;  Smith  v.  Leland,  2  390. 

Duer,  497.  94  See  chapter  on  Actions  by  and 

In  an  action  on  an  open  account  against  Executors  and  Adminislra- 

in  the  name  of  an  assignee,  where  tors. 

the.  assignment  is  bona  fide,  and  An  executor  assignee  is  excluded 

without   recourse,    and   where   no  from  testifying  as  to  transactions 

set-off  or  cross  claim  against  the  with    a    deceased.      Murphy    v. 

assignor  is  pleaded,   the  assignor  Schmidt,  80  N.  J.   Law,  403,  79 

is  a  competent  witness  to  prove  the  Atl.  Rep.  293. 

account.    Platt  v.  Hedge,  8  Iowa,  »5  Moore  v.  Viele,  4  Wend.  420. 

386,  392.  »»Arend  ».  Liverpool,  N.  Y.  & 

In  an  action  on  a  certificate  of  Phila.  Steamship  Co.,  6  Lans.  457; 
deposit   by   the   assignee   thereof,  Chapin  v.  Hollister,  7  Id.  456. 
the  assignor  is  not  a  competent  The  amount  of  consideration  re- 
witness  for  the  plaintiff.    Loudon  ceived  by  the  assignor  for  the  de- 


ACTIONS   BY  AND   AGAINST   ASSIGNEES  47 

petent  evidence  in  favor  of  the  assignee,97  unless  part  of  the 
res  gestce  of  an  act  properly  in  evidence,98  or  communicated  to 
the  debtor  or  otherwise  brought  home  to  him;  and  they  are 
not  made  competent  by  being  declarations  against  interest, 
offered  after  the  assignor  is  dead.99  Some  qualifications  of 
this  rule  will  be  noticed  hi  considering  the  competency  of 
evidence  of  good  faith  in  a  transfer  impeached  as  fraudulent. 

28.  Their  Competency  Against  Assignee. 

To  determine  their  competency  when  offered  against  the 
assignee,  we  must  consider,  1.  the  tune  when  they  were 
made;  2.  the  character  of  the  assignment;  and,  3.  the  nature 
of  the  act  or  declaration  offered  in  evidence. 

29.  — If  Made  Before  Assignor  was  Owner. 
Admissions  and  declarations  made  by  the  assignor  before 

he  became  owner  are  wholly  incompetent  against  the  as- 
signee,1 except,  perhaps,  that  when  it  is  relevant  to  prove 

mand    assigned    could    not    have  Declarations  and  admissions  of 

affected  his  credibility.     Livings-  a  deceased  donor  that  she  had  made 

ton  v.  Spero,  18  N.  Y.  Misc.  243,  a  gift  of  her  ring  to  plaintiff  are 

41  N.  Y.  Supp.  606.  admissible  as  corroborative  proof 

97  Rose.  N.  P.  57.  of  her  intent  to  make  the  gift,  but 
Declarations     of     an     assignor  they  are  not  in  themselves  suf- 

against  his  interest  in  support  of  ficient  to   establish  a   valid  gift, 

his  assignment  are  competent  evi-  Garrison  v.  Union  Trust  Co.,  164 

dence  against  those  claiming  under  Mich.  345,  129  N.  W.  Rep.  691, 

him;  but  declarations  by  him  tend-  32  L.  R.  A.  N.  S.  219. 

ing  to  overthrow  the  assignment  *Bond  v.   Fitzpatrick,   4  Gray 

or  to  give  it  a  different  meaning  (Mass.),  89.    So  declarations  made 

from  that  which  appears  on  its  by  one  who  afterwards  became  an 

face  are  not  competent  as  against  assignee  hi  bankruptcy,  or  a  trustee, 

the  assignee.    Oliver  v.  McDowell,  are  not  admissible  against  him  in 

100   111.   App.   45.  that  capacity.    Legge  v.  Edmonds, 

98  According  to  Howard  v.  Up-  25  L.  J.  Ch.  125;  Metters  v.  Brown, 
ton,  9  Hun,  434,  the  act  must  not  32  L.  J.  Ex.  140. 

only  be  properly  in  evidence,  but  The  declarations  of  a  bankrupt 

in  issue,  or  relevant  to  the  issue,  made  before  the  act  of  bankruptcy, 

99  Outram  v.  Morewood,  5  T.  R.  are  admissible  against  the  assignee 
123.  in  bankruptcy,  to  charge  the  bank- 


48 


ACTIONS   BY   AND    AGAINST   ASSIGNEES 


that  as  owner  of  the  claim  he  had  notice  of  any  fact,  declara- 
tions made  previous  to  ownership,  showing  a  then  present 
knowledge  of  the  fact  may  be,  within  reasonable  limits, 
evidence  to  go  to  the  jury  tending  to  show  notice  at  the  time 
when  he  dealt  with  or  possessed  the  thing  assigned. 

30.  — If  Made  after  he  Ceased  to  be  Owner. 

The  assignor's  admissions  and  declarations,  and  even  his 
formal  written  acknowledgment,  made  after  he  ceased  to  be 
owner,2  are  equally  incompetent  against  the  assignee,  unless 


rupt's  estate.    Von  Sachs  v.  Kretz, 
72  N.  Y.  548. 

'Eby  v.  Eby,  5  Pa.  St.  435; 
Kinna  v.  Smith,  3  N.  J.  Eq.  (2 
Green)  14;  Woodruff  ».  Cook,  25 
Barb.  505;  Pringle  v.  Pringle,  59 
Pa.  St.  289;  Morton  v.  Morton,  13 
Serg.  &  R.  108;  s.  p.  4  Pa.  St.  439; 
Van  Gelder  v.  Van  Gelder,  81  N.  Y. 
625;  Zobel  v.  Bauersachs,  55  Neb. 
20,  75  N.  W.  Rep.  43;  Welcome  ». 
Mitchell,  81  Wis.  566,  29  Am.  St. 
Rep.  913,  51  N.  W.  Rep.  1080; 
Muncey  v.  Sun  Insurance  Co.,  109 
Mich.  542,  67  N.  W.  Rep.  562; 
Brock  v.  Brock,  92  Va.  175,  23 
S.  E.  Rep.  224.  The  question  as 
to  the  validity  of  an  assignment 
is  to  be  determined  by  the  facts 
existing  at  the  tune  it  was  made, 
and,  if  when  delivered  it  repre- 
sented an  honest  purpose  and  was 
made  in  good  faith,  fraud  cannot 
be  fastened  upon  it  thereafter  by 
any  act  or  statement,  whether  ver- 
bal or  written,  of  the  assignor.  L 
Roberts  v.  Buckley,  145  N.  Y.  215,  j 
39  N.  E.  Rep.  966.  Payment  by  \ 
a  garnishee  of  his  debt  to  defend- 
ant cannot  be  proven  against 
plaintiff  by  statements  of  defend-  I 


ant  made  after  service  of  the 
garnishment.  Willis  v.  Holmes,  28 
Ore.  265,  42  Pac.  Rep.  989.  Green- 
leaf  says,  after  he  ceased  to  be  sole 
owner.  1  Greenl.  Ev.,  §  190. 
Taylor  omits  this  qualification. 
1  Tayl.  Ev.,  §  713.  And  in  Bond 
v.  Fitzpatrick,  4  Gray  (Mass.),  89, 
it  was  held  that  if  the  recovery  is 
severable,  the  declarations  of  an 
assignor  of  a  part  interest  may  be 
competent  against  the  assignee  to 
the  extent  of  that  interest.  The 
title  of  the  assignee  of  a  non- 
negotiable  promissory  note  cannot 
be  affected  by  the  declarations  of 
the  assignor  made  after  the  assign- 
ment. Van  Gelder  v.  Van  Gelder, 
81  N.  Y.  625. 

The  former  owner  of  a  chose  in 
action  who  has  transferred  his 
interest  to  another,  cannot  by 
subsequent  admissions  affect  the 
right  of  the  owner  or  holder.  Such 
evidence  is  properly  rejected. 
Wangner  v.  Grimm,  169  N.  Y.  421, 
62  N.  E.  Rep.  569.  Declarations 
of  the  assignor  made  after  the  as- 
signment are  inadmissible  against 
the  assignee.  Reinecke  v.  Gruner, 
111  Iowa,  731,  82  N.  W.  Rep.  900. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


49 


the  evidence  connects  the  assignee  with  them;  and  it  makes 
no  difference  that  the  assignment  is  only  as  collateral,3  or 


A  declaration  as  to  his  age  made 
by  an  assured  who  was  the  assignor 
of  the  policy,  subsequent  to  the 
assignment,  is  incompetent  as 
against  the  assignee.  Barnett  v. 
Prudential  Ins.  Co.,  91  N.  Y.  App. 
Div.  435,  86  N.  Y.  Supp.  842. 

Self-serving  declarations  such  as 
letters  written  by  assignor  to  the 
defendant  stating  that  he  had  not 
assigned  the  claim  to  the  plaintiff 
are  incompetent.  Williams  v.  Ham- 
lin,  121  N.  Y.  Supp.  228. 

Statements  of  the  obligee  of  a 
title  bond,  made  after  assignment 
thereof,  are  not  competent  evidence 
against  the  assignee.  Coldiron  v. 
Asheville  Shoe  Co,,  93  Va.  364,  25 
S.  E.  Rep.  238. 

Declarations  made  by  the  as- 
signor out  of  court  after  the  trans- 
fer of  the  property  are  not  evidence 
against  the  assignee.  Harlam  v. 
Green,  31  N.  Y.  Misc.  261,  64  N.  Y. 
Supp.  79,  aff'd  in  31  N.  Y.  Misc. 
798,  62  N.  Y.  Supp.  1029. 

The  declarations  of  a  grantor 
made  after  his  conveyance  cannot 
be  received  to  disparage  his  deed. 
Bellinger  v.  Bollinger,  154  Cal. 
695,  99  Pac.  Rep.  196;  Hughes 
Bros.  v.  Redus,  90  Ark.  149,  118 
S.  W.  Rep.  414. 

Declarations  of  a  former  owner 
of  negotiable  paper  or  chose  in  ac- 
tion are  not  admissible  against  the 
holder  or  assignee  to  affect  his 
title  or  rights.  Mitchell  v.  Bald- 
win, 88  N.  Y.  App.  Div.  265,  84 
N.  Y.  Supp.  1043,  citing  Merkle  v. 
Beidleman,  165  N.  Y.  21,  58  N.  E. 


Rep.  757;  Dodge  v.  Freedmans  S. 
&  T.  Co.,  93  U.  S.  379,  23  L.  ed. 
920;  German- American  Bank  v. 
Slade,  15  N.  Y.  Misc.  287,  36  N.  Y. 
Supp.  983. 

The  admissions  of  the  original 
payee  of  a  note,  made  long  after 
its  endorsement  by  him  before  ma- 
turity, that  the  note  was  originally 
without  consideration,  cannot  af- 
fect the  title  acquired  by  a  bona 
fide  holder  for  value.  Eyermann  v. 
Piron,  151  Mo.  107,  52  S.  W.  Rep. 
229;  Athens  Nat.  Bank  v.  Athens 
Exch.  Bank,  110  Ga.  692,  36  S.  E. 
Rep.  265. 

Statements  by  an  indorser  and 
transferror  of  a  check  after  pay- 
ment on  the  same  has  been  stopped, 
are  inadmissible  as  to  the  bona 
fides  of  the  ownership  of  a  subse- 
quent holder.  Maslon  v.  Spricker- 
hoff,  50  N.  Y.  Misc.  644,  98  N.  Y. 
Supp.  618. 

3  Wheeler  v.  Wheeler,  9  Cow.  34; 
Dazey  v.  Mills,  10  111.  (5  Gilm.)  70. 
In  Miller  v.  Bingham,  29  Vt.  82, 
the  fact  that  the  declarations  were 
made  while  the  chose  in  action  was 
held  by  a  temporary  assignee  as 
collateral  security,  was  held  not 
to  render  them  incompetent  against 
one  to  whom  the  declarant  subse- 
quently assigned  it,  after  having 
redeemed  it. 

An  admission  in  open  court  made 
by  an  executor  respecting  certain 
claims  against  the  estate  binds  the 
estate,  notwithstanding  that  there 
are  two  executors.  Matter  of 
Prince,  56  N.  Y.  Misc.  222,  107 


50 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


good  only  in  equity.4  But  if  the  assignee  is  merely  a  nominal 
party,  suing  for  the  assignor's  benefit,  they  are  competent; 5 
while,  on  the  other  hand,  if  the  assignee  is  the  real  party  in 
interest,  the  fact  that  the  action  is  hi  the  assignor's  name 
does  not  render  competent  his  declarations,  made  subse- 
quent to  the  transfer.6 

31.  If  Made  during  his  Ownership. 

Three  rules  have  contended  for  control  in  respect  to  ad- 
mission of  evidence  of  the  assignor's  acts  and  declarations 
against  his  own  interest,  made  during  his  ownership.  One 
rule 7  declares  them  universally  competent  against  all  as- 


N.  Y.  Supp.  296;  Barry  v.  Lam- 
bert, 98  N.  Y.  300,  50  Am.  Rep. 
677. 

4  Mandeville  v .  Welch,  5  Wheat. 
277. 

5  Eaton  v.  Corson,  59  Me.  510. 
Admissions,  even  by  the  nominal 
plaintiff,  made  after  he  parted  with 
his  interest  in  the  cause  of  action, 
are  not  competent  against  the  bene- 
ficial assignee  suing  in  the  name  of 
the  former.     Wing  v.   Bishop,   3 
Allen  (Mass.),  456. 

8  Frear  v.  Evertson,  20  Johns. 
142.  So  an  assignor's  acquiring 
possession  again  does  not  let  in 
declarations  made  during  the  re- 
newed possession,  and  relating  to 
the  former  period.  Cornett  v. 
Fain,  33  Geo.  219;  Tilson  v.  Ter- 
williger,  56  N.  Y.  273.  The  rule 
of  exclusion  applies  not  only  to 
matters  in  avoidance  and  dis- 
charge, but  also  to  those  which  go 
to  the  maintenance  of  the  action 
and  the  inception  of  the  contract. 
Wing  v.  Bishop,  3  Allen  (Mass.), 
456;  Benjamin  v.  Coventry,  19 
Wendell,  353. 


The  declarations  of  a  grantor, 
made  after  the  transfer  of  both 
title  and  possession,  cannot  be  re- 
ceived in  evidence  as  against  the 
grantee.  Lent  v.  Shear,  160  N.  Y. 
462,  55  N.  E.  Rep.  2;  see  also  Flan- 
nery  v.  Van  Tassel,  127  N.  Y.  631, 
27  N.  E.  Rep.  393. 

The  declarations  of  a  nominal 
plaintiff  after  he  has  parted  with 
his  interest  in  the  cause  of  action, 
are  not  admissible  in  evidence  to 
defeat  the  action.  Dazey  v.  Mills, 
10  111.  67;  Butler  v.  Millett,  47  Me. 
492;  Palmer  v.  Cassin,  18  Fed. 
Cas.  Co.  10,  687,  2  Cranch  C.  C. 
66. 

7  Which  is  best  represented  in 
Cowen  &  Hill's  Notes  to  Phillips 
on  Evidence  (1  Phil.  Ev.),  where 
cases  are  collected.  An  admission 
of  an  assignor  of  a  chattel  mort- 
gage against  his  own  interest,  made 
before  he  assigned  the  instrument, 
is  admissible  against  his  assignee. 
Anderson  v.  South  Chicago  Brew- 
ing Co,  173  111.  213,  50  N.  E.  Rep. 
655. 

Admissions  of   claimant's  pred- 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


51 


signees,  except  transferees  of  negotiable  paper  before  dis- 
honor. This  rule,  which  is  a  departure  from  the  principle 
forbidding  hearsay,  and  securing  the  sanction  of  an  oath 
and  the  right  of  cross-examination  as  to  all  testimony,8  is 
founded  on  the  doctrine  that,  as  every  assignee  stands  in 
the  shoes  of  his  assignor,  he  must  take  title  subject  to  what- 
ever disparagement  the  latter  may  have  put  upon  it.  It 


ecessors  in  title  that  such  claim 
did  not  exist  are  competent  against 
claim.  Crane  v.  Brooks,  189  Mass. 
228,  75  N.  E.  Rep.  710. 

Admission  by  an  assignor  of  a 
claim  for  services  rendered,  against 
interest,  is  binding  upon  the  as- 
signee. Kelley  v.  Schupp,  60  Wis. 
76,  18  N.  W.  Rep.  725. 

Declarations  of  assignor  in  dis- 
paragement of  title,  made  before 
assignment,  are  admissible  against 
him.  McCormick  v.  Sadler,  14 
Utah,  463,  47  Pac.  Rep.  667. 

Declarations  of  an  assignor 
against  his  interest  in  support  of 
his  assignment  are  competent  evi- 
dence against  those  claiming  under 
him.  Oliver  v.  McDowell,  100  111. 
App.  45. 

Admissions  of  mortgagee  during 
his  ownership,  that  there  was  no 
consideration  for  the  mortgage,  are 
admissible  against  his  assignee. 
Anderson  v.  Lee,  73  Minn.  397,  76 
N.  W.  Rep.  24. 

Declarations  accompanying  a 
transfer  of  promissory  notes  from 
hand  to  hand,  and  other  declara- 
tions contemporaneous  with  the 
acts  of  those  persons  who  were  con- 
cerned in  the  making  of  the  notes 
and  in  putting  them  into  circula- 
tion, might  be  admissible  under 
certain  conditions  to  show  that  they 


were  put  into  circulation  fraudu- 
lently. Produce  Exch.  Trust  Co. 
v.  Bieberbach,  176  Mass.  577,  58 
N.  E.  Rep.  162. 

The  declarations  of  a  holder  of  a 
note  while  he  held  it  and  before  he 
transferred  it,  are  admissible  to 
prove  failure  of  consideration  of 
the  note  as  against  any  one  but 
a  bona  fide  holder.  Frick  v.  Rey- 
nolds, 6  Okla.  638,  52  Pac.  Rep. 
391. 

When  a  promissory  note  is  en- 
dorsed by  the  payee  after  it  is  over- 
due, admissions  by  the  payee  while 
owner  of  the  note  are  inadmissible 
in  evidence  against  the  indorsee  in 
an  action  by  him  against  the 
maker.  Sears  v.  Moore,  171  Mass. 
514,  50  N.  E.  Rep.  1027. 

The  declarations  and  statements 
of  the  wife  as  assignor,  at  the  time 
of  the  assignment  to  her  husband 
are  admissible  for  the  purpose  of 
showing  whether  the  transfer  was 
a  gift  or  a  bargain  and  sale.  Shack- 
elford  v.  Orris,  135  Ga.  29,  68 
S.  E.  Rep.  838. 

8  Bond  v.  Fitzpatrick,  4  Gray 
(Mass.),  <89,  92;  Bullis  v.  Mont- 
gomery, 50  N.  Y.  358,  rev'g  3  Lans. 
258.  But  see  Flannery  v.  Van 
Tassel,  127  N.  Y.  631,  27  N.  E. 
Rep.  393. 


52  ACTIONS   BY   AND   AGAINST   ASSIGNEES 

has  been  followed  in  many  States,  particularly  where  com- 
mercial transfers  of  things  in  action  are  less  common  than 
hi  New  York. 

A  stricter  rule,  stated  by  Greenleaf  and  followed  by 
Taylor,  requires  evidence  of  an  identity  of  interest  between 
assignor  and  assignee  to  admit  these  declarations,  such 
identity  being  recognized  in  three  cases:  1.  Where  the  as- 
signee is  the  mere  agent  and  representative  of  the  assignor. 
2.  Where  he  took  title  with  actual  notice  of  the  true  state 
of  that  of  the  assignor,  as  qualified  by  the  admissions  hi 
question.  3.  Where  he  purchased  the  demand  already  stale, 
or  otherwise  infected  with  circumstances  of  suspicion.9 

The  New  York  rule,  now  recognized  also  in  the  Supreme 
Court  of  the  United  States,10  is  still  more  strict  hi  the  protec- 
tion of  the  right  of  assignees.11  This  rule  is,  that  the  oral 
admissions  or  declarations,  as  distinguished  from  the  transac- 
tions, of  the  former  holder  of  any  chose  in  action  or  personal 
property,12  even  if  made  before  his  transfer,  are  not  com- 
petent evidence  against  the  transferee,13  unless  there  is  a 

»1  Greenl.  Ev.,  §190;  1  Tayl.  127  N.  Y.  631,  27  N.  E.  393; 
Ev.,  §  713.  Merkle  v.  Beidleman,  165  N.  Y. 

10  Paige  ».  Cagwin,  7  Hill,  361;      21,  58  N.  E.  Rep.  757. 

it  is  immaterial  whether  the  as-  12  Smith  v.  Webb,  1  Barb.  234; 
signee  be  one  for  value,  or  merely  a  Beach  v.  Wise,  1  Hill,  612;  Freed- 
trustee  for  creditors.  Truax  v.  men's  Sav.,  etc.,  Co.  v.  Dodge,  93 
Slater,  86  N.  Y.  630;  Freeman's  U.  S.  379;  Merkle  v.  Beidleman, 
Sav.,  etc.,  Co.  v.  Dodge,  93  U.  S.  165  N.  Y.  21,  58  N.  E.  Rep.  757.  A 
379.  former  owner  of  a  chattel  who  has 
In  New  York  the  doctrine  of  transferred  his  interest  to  another 
stare  decisis  has  been  resorted  to  by  an  absolute  assignment,  can- 
by  the  court  to  sustain  the  New  not,  by  his  subsequent  admissions, 
York  rule  as  to  declarations  con-  affect  the  right  of  the  purchaser, 
cerning  personal  property,  even  Holmes  v.  Roper,  141  N.  Y.  64,  36 
though  said  rule  may  be  inconsist-  N.  E.  Rep.  180. 
ent  with  the  rule  as  to  declarations  "  The  language  of  the  court  in 
concerning  real  property.  Merkle  Paige  v.  Cagwin,  applies  the  rule 
v.  Beidleman,  165  N.  Y.  21,  58  only  to  purchasers  in  good  faith 
N.  E.  Rep.  757.  and  for  value,  but  subsequent  cases 

11  Jones  v.  East  Society,  etc.,  21  have  extended  it  to  one  holding  a 
Barb.  174;  Flannery  v.  Van  Tassel,  sealed  assignment,   without  other 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


53 


present  identity  of  interest  between  them.14  And  even  the 
fact  of  the  assignor  having  died  before  the  trial  does  not 
allow  the  declarations  to  be  admitted  under  the  familiar 
rule  that  declarations  against  interest,  by  a  person  since 
deceased,  are  competent.15 


proof  of  consideration;  Prouty  v. 
Eaton,  41  Barb.  416;  s.  p.  Pringle 
v.  Pringle,  59  Pa.  St.  289;  to  a 
legatee,  Smith  v.  Webb,  1  Barb. 
230  (but  see  Smith  v.  Sergent,  2 
Hun,  107) ;  and  to  a  voluntary  as- 
signee in  trust  for  creditors;  Bullis 
v.  Montgomery,  50  N.  Y.  358,  and 
cases  cited;  40  Id.  226.  The  rule 
of  exclusion  is  available  only  for 
the  protection  of  a  subsequent  pur- 
chaser or  assignee.  A  stranger  who 
does  not  claim  under  the  declarant, 
but  only  proves  the  declarant's 
claim  by  way  of  defeating  plain- 
tiff's title,  cannot  object  to  the 
declarations,  if  admissible  as  dec- 
larations against  interest  by  a 
person  since  deceased.  Schenck  v. 
Warner,  37  Barb.  258. 

The  declarations  of  an  assignor 
of  a  contract  for  the  conveyance 
of  real  estate  while  still  owning  the 
same  cannot  be  proved  against  his 
assignee  to  defeat  the  latter's  rights 
under  the  contract  to  enforce 
specific  performance  of  it.  Tittle  v. 
Van  Valkenburg,  75  N.  Y.  App.  Div. 
69,  77  N.  Y.  Supp.  786,  aff 'd  in  186 
N.  Y.  597,  79  N.  E.  Rep.  1117. 

Declarations  of  assignor  of  mort- 
gage, made  prior  to  the  assignment 
are  inadmissible  against  assignee 
to  establish  a  defense  to  an  action 
by  him  to  foreclose.  Merkle  v. 
Beidleman,  165  N.  Y.  21,  58  N.  E. 
Rep.  757. 


Admissions  by  the  assignor  made 
after  the  assignment  are  not  ad- 
missible to  show  that  defendant 
came  into  possession  of  the  goods 
as  assignee.  Finance  Co.  v.  Joseph- 
son,  88  N.  Y.  Supp.  707,  citing 
Von  Sachs  v.  Kretz,  72  N.  Y.  548. 

14  Cases  cited  in  Paige  v.  Cagwin, 
7  Hill,  361.    The  true  criterion  of 
identity  of  interest  is  whether  the 
action  is  for  the  immediate  benefit 
of   the   assignor.     Jones   v.    East 
Society,  21  Barb.  175. 

No  declaration  of  a  partner  after 
he  has  assigned  a  cause  of  action 
can  be  received  to  defeat  the  claim. 
Gerding  v.  Funk,  48  N.  Y.  App. 
Div.  603,  64  N.  Y.  Supp.  423, 
aff'd  in  169  N.  Y.  572,  61  N.  E. 
Rep.  1129. 

15  Nelson,  Ch.  J.,  Stark  v.  Bos- 
well,  6  Hill,  405,  s.  P.  1  Barb.  234, 
and  see  37  Id.  321. 

The  declarations  of  decedent  and 
the  records  kept  by  him,  prior  to 
his  assignment,  are  admissible  to 
establish  fraud  and  the  amount  of 
his  indebtedness.  Continental  Nat . 
Bank  v.  Moore,  83  N.  Y.  App.  Div. 
419,  83  N.  Y.  Supp.  302. 

A  declaration  as  to  her  age  made 
by  the  assignor  of  a  life  insurance 
policy  on  her  life  after  the  assign- 
ment of  it,  is  not  admissible  as 
against  the  assignee.  Barnett  v. 
Prudential  Ins.  Co.,  91  N.  Y.  App; 
Div.  435,  86  N.  Y.  Supp.  842. 


54 


ACTIONS    BY   AND    AGAINST   ASSIGNEES 


3 la.  When  Declarations  are  Part  of  the  Res  Gestae. 

But  while,  under  the  New  York  rule,  the  mere  independent 
declarations  of  a  prior  holder  of  a  chose  in  action  cannot  be 
given  hi  evidence  to  affect  the  title  or  the  rights  of  a  subse- 
quent holder,  such  declarations  made  at  the  time  the  chose 
in  action  was  negotiated,  to  the  person  'who  is  seeking  to  en- 
force it,  may  be  proved  as  part  of  the  res  gestce  and  may 
qualify  the  latter's  title.16  And  the  statements  of  a  third 
person  in  possession  of  property,  as  to  whom  he  holds  it  for, 
or  as  to  who  is  the  owner  of  it,  are  not  hearsay,  but  com- 
petent evidence  to  prove  the  facts  stated.  They  are  a  part 
of  the  res  gestce  and  characterize  the  possession.17 


16  Benjamin  v.  Rogers,  126  N.  Y. 
60,  26  N.  E.  Rep.  970. 

Declarations  which  are  not  only 
part  of  the  res  gestce  but  which  are 
constituent  elements  of  the  trans- 
action itself  cannot  be  excluded 
as  against  an  assignee  for  value. 
Squire  v.  Greene,  47  N.  Y.  App. 
Div.  636,  62  N.  Y.  Supp.  48,  aff'd 
in  168  N.  Y.  659,  61  N.  E.  Rep. 
1135. 

The  declarations  of  a  person 
while  in  possession  of  personal 
property  in  disparagement  of  his 
title  or  explanatory  of  the  char- 
acter of  his  possession  are  admis- 
sible as  part  of  the  res  gestce.  Wig- 
gins v.  Foster,  8  Kan.  App.  579,  55 
Pac.  Rep.  350,  citing  Cunningham 
v.  Fuller,  35  Nebr.  58,  52  N.  W. 
Rep.  836;  Durham  v.  Shanon,  116 
Ind.  403,  19  N.  E. 'Rep.  190,  9 
Am.  St.  Rep.  860. 

The  declarations  of  a  deceased 
administratrix  that  a  sale  had  been 
made  of  certain  property  are  parts 
of  the  res  gcstee  and  admissible.  In 
so  far  as  they  are  against  the  inter- 
est of  her  intestate  they  are  also 


admissible  since  they  concern  only 
the  act  of  the  administratrix  in 
making  a  sale  and  do  not  refer  to 
any  act  of  the  intestate.  In  re 
Suess,  37  N.  Y.  Misc.  459,  75  N.  Y. 
Supp.  938,  citing  Livingston  v. 
Arnoux,  56  N.  Y.  507. 

The  assignee  of  a  mortgage  takes 
it  subject  to  all  the  equities  exist- 
ing in  favor  of  the  mortgagor, 
notwithstanding  that  at  the  tune 
of  the  assignmentr  the  assignor 
makes  an  affidavit  that  the  mort- 
gage is  valid  for  its  full  amount 
and  the  assignee  pays  the  full 
value  for  it.  Scheurer  v.  Brown, 
67  N.  Y.  App.  Div.  567,  73  N.  Y. 
Supp.  877,  citing  Schafer  v.  Reilly, 
50  N.  Y.  61. 

"Elwood  v.  Saterlie,  68  Minn. 
173,  71  N.  W.  Rep.  13;  Durham  v. 
Shannon,  116  Ind.  403,  9  Am.  St. 
Rep.  860.  The  declarations  of  a 
vendor  of  personal  property,  while 
he  remains  in  possession  thereof, 
though  after  the  sale,  as  to  the 
character  of  his  possession,  are 
admissible  in  evidence  against  his 
vendee.  Murphy  v.  Mulgrew,  102 


ACTIONS   BY   AND    AGAINST   ASSIGNEES 


55 


32.  Preliminary  Question. 

An  offer  to  give  the  acts  and  declarations  of  an  assignor 
in  evidence  against  his  assignee,  should  be  so  framed  as  to 
show  that  they  were  made  before  the  transfer,18  and  are  ad- 
missible as  having  been  made  against  interest  at  the  tune 
when  they  were  made;  and  the  judge  must  determine  the 
question  of  their  admissibility,  and  not  leave  it  to  the 
jury  to  determine  when  they  were  made.19  If,  on  the 
evidence,  it  be  left  in  doubt  whether  the  declarations 
were  made  before  or  after  the  transfer,  they  must  be  ex- 
cluded.20 


Cal.  547,  41  Am.  St.  Rep.  200,  36 
Pac.  Rep.  857.  But  declarations 
of  a  person  in  possession  explana- 
tory of  such  possession,  are  ad- 
missible where  neither  of  the 
ties  to  the  suit  claims  under  him. 
Oberholtzer  v.  Hazen,  101  Iowa, 
340,  70  N.  W.  Rep.  207.  And  wit- 
nesses may  not  be  allowed  to 
state  the  common  understanding 
in  the  neighborhood,  or  the  general 
reputation  as  to  ownership.  Reiley 
v.  Haynes,  38  Kan.  259,  5  Am.  St. 
Rep.  737,  16  Pac.  Rep.  440. 

The  declarations  of  a  party  in 
possession  of  personal  property 
in  disparagement  of  his  title  are 
admissible  in  evidence  against  a 
party  claiming  under  him,  upon 
the  principle  that  they  constitute 
verbal  acts — parts  of  the  res  gestoe — 
and  serve  to  illustrate  the  character 
of  the  possession.  Vermillion  v. 
Le  Clare,  89  Mo.  App.  55,  citing 
Turner  v.  Belden,  9  Mo.  797; 
Gavin  v.  Smith,  21  Mo.  444;  Bar- 
rett v.  Donnelly,  38  Mo.  492; 
Thomas  v.  Wheeler,  47  Mo.  363; 
Burgert  v.  Borchert,  59  Mo.  80; 
Anderson  v.  McPike,  86  Mo.  293. 


18  Jennain  v.  Denniston,  6  N.  Y. 
276;  Ball  v.  Loomis,  29  Ida.  416. 
This  is  the  New  York  rule.     To 
the  contrary,  Magee  v.  Raiguel,  64 
Pa.  St.   110,  rev'g  7  Phila.  231; 
Von  Sachs  v.   Kretz,   72   N.   Y. 
548. 

19  Vrooman  v.  King,  36  N.  Y.  477, 
484,   s.   P.   Jones  v,   Hurlbut,  39 
Barb.  403.    If  the  plaintiff  mam- 
tains  that  the  assignor  had  an  in- 
terest, defendant  is  not  precluded 
from   offering   the   assignor's   ad- 
mission by  the  fact  that  he  denies 
the    assignor    had    any    interest. 
Eaton  v.  Corson,  59  Me.  512. 

20  Vrooman  v.  King,  36  N.  Y. 
477. 

Whenever  the  admissions  of  one 
having  or  claiming  title  to  real 
estate  are  competent  against  him, 
they  will  be  competent  against  all 
persons  subsequently  deriving  title 
through  or  from  him.  N.  Y.  Water 
Co.  v.  Crow,  110  N.  Y.  App.  Div. 
32,  96  N.  Y.  Supp.  899.  See  also 
Conkling  v.  Weatherwax,  181  N.  Y. 
258,  73  N.  E.  Rep.  1028,  2  Ann. 
Gas.  740;  Lyon  v.  Ricker,  141  N.  Y. 
225,  36  N.  E.  Rep.  189. 


56  ACTIONS   BY   AND   AGAINST   ASSIGNEES 

33.  Distinction  between  Declarations  and  Transactions. 

The  rule  of  exclusion  is  aimed  at  loose  oral  declarations 
and  conduct  not  having  the  quality  of  contract  or  estoppel. 
It  excludes,  therefore,  not  only  evidence  of  words,  but  evi- 
dence of  acts  offered  as  merely  in  the  nature  of  admissions, 
such  as  the  assignor's  discontinuing  an  action  brought  for 
the  same  cause,  and  suffering  judgment  for  costs; 21  but  it 
does  not  exclude  evidence  of  effective  transactions,  such  as  a 
message  sent  by  the  assignor  while  owner,  to  the  debtor,  on 
which  the  latter  acted  or  gave  assent,  so  as  to  constitute  an 
agreement; 22  or  such  as  the  act  of  a  bank,  the  assignor,  in 
crediting  a  payment  in  its  pass-book  delivered  to  its  debtor. 
The  rule  cannot  apply  against  written  evidence  put  into 
the  debtor's  hands  by  the  assignor  before  the  assignment.23 
To  illustrate  the  distinction  in  another  form,  an  unrecorded 
mortgage  cannot  be  given  priority  over  a  recorded  mort- 
gage by  mere  evidence  that  the  assignor  of  the  latter  de- 
clared or  admitted,  while  he  held  it,  that  he  took  it  with 
notice  of  the  former;  but  this  may  be  done  by  offering  a 
written  stipulation  given  by  him  to  the  owner  of  the  former, 
denning  their  relative  precedence.  His  admissions  are  not 
competent  against  his  assignee;  his  agreement  is.24 

34.  Declarations  Admitted  in  Case  of  Conspiracy. 
Where  a  combination  is  shown  to  have  existed  between 

the  assignor  and  the  assignee,  by  prelimmary  evidence  in- 

21  Tousley  v.  Barry,  16  N.  Y.  497.  gage.    Holcomb  v.  Campbell,  118 
Written   declarations   by   testator  N.  Y.  46,  22  N.  E.  Rep.  1107. 
held  incompetent.    Lowery  v.  Ersk-  23  Jermain  v.  Denniston,  6  N.  Y. 
ine,  113  N.  Y.  52,  20  N.  E.  Rep.  276. 

588.  See  also  Merkle  v.  Beidleman,  Entry  made  by  bookkeeper  in  a 
165  N.  Y.  21,  58  N.  E.  Rep.  757;  bank  held  insufficient  proof  of  pay- 
Bush  v.  Roberts,  111  N.  Y.  278,  18  ment  of  a  mortgage.  Whitehouse 
N.  E.  Rep.  732,  7  Am.  St.  Rep.  741.  t>.  Bank  of  Cooperstown,  48  N.  Y. 

22  Smith  v.  Schanck,  18  Barb.  344.  239. 

Wife's  testimony  as  to  what  was  24Fort  v.  Burch,  6  Barb.  60,  77; 

said  between  her  deceased  husband  Beers  v .  Hawley,  2  Conn.  467.    See 

and  the  mortgagee  held  competent  also    Westbrook    v.    Gleason,    79 

as  against  an  assignee  of  the  mort-  N.  Y.  23. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


57 


dependent  of  the  declarations  of  either,  then  the  declara- 
tions of  each,  made  while  acting  in  furtherance  of  the  wrong- 
ful scheme,  and  during  the  existence  of  the  combination, 
are  competent  against  the  other,  upon  the  familiar  rule  ap- 
plicable to  the  declarations  of  co-conspirators,25  and  it  need 
not  be  shown  that  such  other  had  any  knowledge  of  the 
declarations.26 


25  See  Cuyler  v.  McCartney,  40 
N.  Y.  226,  rev'g  33  Barb.  165,  and 
cases  cited;  Lee  v.  Huntoon,  Hoffm. 
453;  Adams  v.  Davidson,  10  N.  Y. 
309. 

The  declarations  of  the  debtor 
made  subsequent  as  well  as  prior 
to  the  transfer  are  admissible  to 
establish  fraud,  where  the  circum- 
stances indicate,  and  there  is  satis- 
factory proof  of,  conspiracy.  Bann- 
ing v.  Marleau,  133  Cal.  485,  65 
Pac.  Rep.  964. 

Where  a  conspiracy  between  a 
husband  and  wife  to  defraud  credi- 
tors has  been  established,  evidence 
of  declarations  made  by  him  while 
the  conspiracy  was  pending,  and 
tending  to  show  the  intent  to  de- 
fraud, is  admissible  against  the 
wife;  especially  so  when  the  hus- 
band remains  in  possession  of  the 
property  which  his  creditors  are 
seeking  to  reach  and  which  he  had 
conveyed  to  her.  Ernest  v.  Mer- 
ritt,  107  Ga.  61,  32  S.  E.  Rep. 
898. 

Where  the  transfer  of  personal 
property  is  merely  colorable  with 
no  visible  change  of  possession  or 
control  and  there  is  satisfactory 
proof  of  conspiracy  to  defraud  the 
creditors  of  the  vendor  his  declara- 
tions made  subsequent  as  well  as 
prior  to  the  transfer,  are  admissible 


to  establish  the  fraud;  but  where, 
before  the  submission  of  the  causes 
all  declarations  made  by  the  vendor 
after  sale  were  ordered  stricken 
out,  the  vendor  cannot  be  prej- 
udiced by  their  admission.  Bann- 
ing v.  Marleau,  133  Cal.  485,  65 
Pac.  Rep.  964. 

Declarations  of  the  fraudulent 
grantor  that  the  property  in  con- 
troversy was  his;  that  he  had 
placed  it  hi  the  name  of  his  wife 
on  account  of  his  insolvency,  and  to 
prevent  his  creditors  from  sub- 
jecting it  to  the  payment  of  their 
debts,  were  admissible  to  show  con- 
tinuous conspiracy,  as  alleged. 
Shelley  ».  Nolen,  39  Tex.  Civ.  App. 
307, 88  S.  W.  Rep.  524. 

Where  the  defense  rests  upon  a 
conspiracy  between  the  plaintiff 
and  his  father  hi  making  a  trans- 
fer to  defraud  creditors,  the  dec- 
larations of  the  father,  made  while 
in  possession  of  the  property, 
should  be  admitted.  Avard  v. 
Carpenter,  72  N.  Y.  App.  Div. 
258,  76  N.  Y.  Supp.  105. 

»Nudd  v.  Burrows,  91  U.  S. 
438. 

Where  the  plaintiff  is  a  party  to 
a  conspiracy  to  defraud  creditors, 
the  declarations  of  his  co-conspira- 
tors, although  made  hi  his  absence, 
are  admissible  in  evidence.  Pincus 


58 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


35.  Receipt,  etc.,  of  the  Assignor. 

A  formal  release  or  receipt,  given  by  the  assignor  to  the 
debtor,  before  the  transfer,  is  competent 27  against  the  as- 
signee; but  the  date  of  the  paper  is  not  even  presumptive 
evidence  against  the  assignee  that  it  was  then  given.28  There 


v.  Reynolds,  19  Mont.  564,  49  Pac. 
Rep.  145. 

The  burden  of  showing  that  a 
sale  of  property  was  fraudulent  is 
upon  the  party  asserting  it,  and, 
as  bearing  upon  such  question, 
conversations  with  the  alleged 
fraudulent  purchaser  upon  the  sub- 
ject, even  in  the  absence  of  his 
vendor,  prior  to  the  time  of  sale, 
are  competent.  Elwood  Mfg.  Co. 
v.  Faulkner,  87  111.  App.  295. 

Where  there  has  been  evidence 
tending  to  show  a  conspiracy  to 
execute  a  fraudulent  design  be- 
tween a  debtor  and  his  creditor 
that  would  hinder  and  delay  other 
creditor,  the  acts  of  the  conspira- 
tors, properly  confined  to  the  de- 
tails and  execution  of  such  scheme, 
in  the  absence  of  each  other  are 
admissible  against  all.  Where  in- 
dividual acts  in  the  execution  of 
the  common  design  are  material, 
the  statements  hi  connection  there- 
with of  any  party  thereto,  charac- 
terizing such  acts,  are  also  ad- 
missible in  evidence  as  to  all. 
Carson  v.  Hawley,  82  Minn.  204, 
94  N.  W.  Rep.  746. 

Where  the  defense  involves  a 
charge  of  conspiracy,  evidence  of 
what  the  persons  charged  as  con- 
spirators did  in  and  about  the 
property  and  affairs  of  the  debtor 
are  competent  evidence  as  to  his 
intent.  Pohalski  v.  Ertheiler,  18 


N.  Y.  Misc.  33,  41  N.  Y.  Supp.  10. 
See  Dewey  v.  Moyer,  72  N.  Y.  70. 

27  Jermain  v.  Denniston,  6  N.  Y. 
276. 

Where  a  release  for  a  valuable 
consideration  is  given  by  the  as- 
signor to  the  debtor,  after  the  as- 
signment but  before  the  debtor 
has  notice  of  such  assignment,  the 
release  is  competent  evidence,  and 
binding  on  the  assignee.  Smith  v. 
Kissel,  92  N.  Y.  App.  Div.  235,  87 
N.  Y.  Supp.  176,  aff'd  in  181  N.  Y. 
536,  73  N.  E.  Rep.  1133. 

A  release  executed  by  the  plain- 
tiff's assignor  for  the  benefit  of  the 
defendant  is  available  against  the 
plaintiff  as  subsequent  assignee  of 
the  contract  sued  upon.  Castor  v. 
Bernstein,  2  Cal.  App.  703,  84 
Pac.  Rep.  244. 

2«  Foster  v.  Beals,  21  Id.  250; 
Smiths  v.  Shoemaker,  17  Wall.  637. 
The  contrary  has  been  ruled; 
Rose.  N.  P.  38,  59  Pa.  St.  289;  and 
correctly  so  in  the  case  of  entries 
made  in  the  usual  course  of  busi- 
ness. Jermain  v.  Denniston,  above; 
and  see  56  N.  Y.  507. 

As  to  entries  and  memoranda 
made  by  persons  since  deceased, 
in  the  ordinary  course  of  profes- 
sional or  official  employment,  see 
Leask  v.  Hoagland,  144  N.  Y. 
App.  Div.  138,  128  N.  Y.  Supp. 
1017. 

Compare  paragraph  2  above. 


ACTIONS   BY   AND   AGAINST   ASSIGNEES 


59 


must  be  extrinsic  evidence  that  it  was  given  before  the  as- 
signor parted  or  assumed  to  part  with  the  chose  in  action, 
in  order  to  render  it  competent.  If,  on  the  evidence  adduced, 
it  be  left  in  doubt  whether  the  discharge  was  given  before 
or  after  the  transfer,  it  must  be  excluded.29 

36.  Notice  to  Produce. 

To  lay  the  foundation  for  secondary  evidence  of  the  con- 
tents of  a  paper  in  the  hands  of  the  assignor,  notice  to  the 
plaintiff  to  produce  it  is  not  sufficient.  The  assignor  should 
be  subpoenaed  to  produce  it.30 


29  Foster  v.  Beals,  21  N.  Y.  250; 
s.  P.,  36  Id.  477.     See  Smith  v. 
Kissel,  92  N.  Y.  App.  Div.  235,  87 
N.  Y.  Supp.  176,  aff'd  in  181  N!  Y. 
536,  73  N.  E.  Rep.  1133. 

30  Chaffee  v.  Cox,  1  Hilt.  78. 

A  letter  written  by  a  buyer  to  a 
seller  cannot  be  proven  by  second- 


ary evidence  where  it  appears  that 
it  is  not  in  the  seller's  possession, 
and  where  it  does  not  appear  that 
the  buyer  could  not  have  com- 
pelled its  production  by  means  of 
a  subpoena  duces  tecwn.  Auten  v. 
Jacobus,  21  N.  Y.  Misc.  632,  47 
N.  Y.  Supp.  1119. 


CHAPTER  II 

ACTIONS  BY  AND  AGAINST  ASSOCIATIONS 
1.  Voluntary  associations.  2.  Joint-stock  companies. 

1.  Voluntary  Associations. 

A  voluntary  association  is  a  body  who  form  their  organi- 
zation, conduct  affairs,  and  settle  accounts  as  if  they  were  a 
corporation;  but,  not  having  the  legal  immunities  of  a  cor- 
poration, are  liable  individually  if  at  all  to  outsiders.  Hence 
in  actions  between  the  members,  the  law,  giving  effect  to 
their  agreement,  applies  rules  of  evidence  which  are  applied 
to  corporations,31  while  in  actions  between  them  and  stran- 


31  Tyrrell  v.  Washburn,  6  Allen, 
466.  See  also  Ashley  v.  Bowling, 
203  Mass.  311,  89  N.  E.  434,  133 
Am.  St.  Rep.  296. 

An  unincorporated  association  is 
not  a  partnership  and  therefore  the 
members  of  it  may  sue  each  other 
in  regard  to  the  exercise  of  rights 
over  the  association's  property. 
Boston  Base  Ball  Assoc.  v.  Brook- 
lyn Base  Ball  Club,  37  N.  Y.  Misc. 
521,  75  N.  Y.  Supp.  1076,  citing 
Ostrom  v.  Greene,  161  N.  Y.  353, 
55  N.  E.  Rep.  919. 

"Voluntary  associations  have  no 
peculiar  sovereignty  relieving  them 
from  the  application  of  the  general 
law  of  contracts."  Robinson  v. 
Dahm,  159  N.  Y.  Supp.  1053,  94 
Misc.  729. 

The  articles  of  association  of  an 

unincorporated  association  to  which 

the  members  gave  their  assent  are 

binding  on  them  and  should  be 

60 


recognized  by  the  courts  excepting 
in  so  far  as  they  may  be  contrary 
to  some  policy  of  our  law  or  so 
inequitable  that  courts  would  not 
enforce  them.  Reffon  Realty  Corp. 
v.  Adams  Land  &  Bldg.  Co.,  128 
Md.  656,  98  Atl.  199. 

The  law  does  not  require  a  volun- 
tary association  to  possess  a  seal. 
White  v.  Hartman,  26  Colo.  App. 
475,  145  Pac.  Rep.  716. 

It  is  not  necessary  that  an  un- 
incorporated association  should 
have  statutory  authorization  to 
have  its  real  estate  held  by  its  presi- 
dent as  a  trustee  for  the  members. 
Roberts  v.  Anderson,  226  Fed.  Rep. 
7,  141  C.  C.  A.  121. 

An  association  of  individuals  for 
the  purpose  of  purchasing  a  lease- 
hold estate  and  constructing  build- 
ings thereon  is  not  illegal.  Such  a 
purpose  is  not  prohibited  by  law  nor 
contrary  to  public  policy.  John- 


ACTIONS   BY   AND   AGAINST  ASSOCIATIONS 


61 


son  v.  Northern  Trust  Co.,  265 
111.  263,  106  N.  E.  Rep.  814. 

Where  a  voluntary  association 
becomes  incorporated,  it  is  merged 
in  the  corporation,  its  members 
become  the  constituent  members 
of  the  corporation,  and  its  property 
becomes  the  property  of  the  cor- 
poration. First  Russian  Nat'l 
Organization  v.  Zuraw,  89  Conn. 
616,  94  Atl.  976. 

When  parties  form  voluntary  as- 
sociations for  religious,  literary, 
social  or  other  purposes  and  adopt 
rules  by  which  to  regulate  their 
conduct  and  measure  their  rights, 
and  by  the  provision  of  which 
members  may  be  admitted  and 
expelled,  such  rules  are  articles  of 
agreement  to  which  all  who  have 
become  members  are  parties  and 
must  be  governed  thereby  in  their 
relations  to  such  association.  Brown 
v.  Harris  County  Medical  Soc. 
(Tex.  Civ.  App.),  194  S.  W.  Rep. 
1179. 

A  member  cannot  be  expelled 
from  a  voluntary  unincorporated 
association  unless  notice  of  the 
charges  be  served  upon  him. 
Grass!  Bros.  v.  O'Rourke,  153 
N.  Y.  Supp.  493,  89  Misc.  234. 

The  relations  of  a  member  of  an 
unincorporated  society  to  the  so- 
ciety are  fixed  by  the  contract  of 
the  parties,  as  expressed  in  the 
constitution  and  by-laws.  With 
their  operation  when  applied  as 
disciplinary  measures  a  court  of 
equity  will  not  interfere,  provided 
they  are  applied  justly  and  fairly. 
Grassi  Bros.  v.  O'Rourke,  153  N.  Y. 
Supp.  493,  89  Misc.  234. 

Where  an  association  has  power 


to  try  a  member  upon  charges  pre- 
ferred against  him  the  courts  will 
not  interfere  unless  such  trial  be 
characterized  by  bad  faith,  malice 
or  manifest  unfairness.  Smith  v, 
Merriott  (Md.),  100  Atl.  731. 

Where  an  association  under  its 
rules  expels  a  member,  such  mem- 
ber must  resort  to,  and  must  ex- 
haust, the  remedies  provided  by 
the  association  itself,  before  ap- 
plying to  a  court  of  equity  for 
relief  unless  such  remedies  are 
wholly  unapplicable,  inadequate 
and  unreasonable  and  if  resorted 
to  would  prove  useless  and  furnish 
him  with  no  relief.  Brown  v. 
Harris  County  Medical  Soc.  (Tex. 
Civ.  App.),  194  S.  W.  Rep.  1179. 

A  member  must  be  assumed  to 
have  assented  to  the  provisions  of 
the  by-laws  of  an  unincorporated 
association.  Where,  however,  the 
remedies  provided  by  the  constitu- 
tion and  by-laws  for  his  relief  do 
not  accord  with  natural  justice,  he 
need  not  avail  himself  of  them  but 
may  apply  to  the  courts  for  relief. 
Robinson  v.  Dahm,  159  N.  Y. 
Supp.  1053,  94  Misc.  729. 

In  the  absence  of  some  statutory 
duty  imposed  upon  unincorporated 
associations  mandamus  will  not  lie 
against  such  an  association  to  com- 
pel the  reinstatement  of  a  member 
even  though  it  appear  that  such 
association  is  closely  affiliated  with 
a  foreign  corporation.  People  v. 
Brotherhood  of  Painters,  etc.,  218 
N.  Y.  115,  112  N.  E.  Rep.  752. 

The  relations  of  the  members  of 
an  unincorporated  society  with 
each  other  depend  upon  the  agree- 
ment between  them.  O'Rourke  v. 


62 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


gers,  the  principles  applicable  in  cases  of  agency  or  partner- 
ship prevail.32 


Kelly  The  Printer  Corp.,  156  Mo. 
App.  91,  135  S.  W.  Rep.  1011. 

An  expelled  member  of  a  fraternal 
order,  a  mutual  benefit  associa- 
tion, an  incorporated  labor  union, 
an  unincorporated  club,  etc.,  must 
exhaust  his  remedy  within  such 
organization,  including  the  right 
to  appeal,  before  he  can  be  heard 
in  the  courts.  Rabb  v.  Trevelyan, 
122  La.  174,  47  So.  Rep.  455, 
citing  Supreme  Lodge  0.  S.  F.  v. 
Raymond,  57  Kan.  647,  47  Pac. 
Rep.  533,  49  L.  R.  A.  373,  note 
"e."  See  also  Crutcher  v.  Eastern 
Div.  No.  321  Order  Ry.  Conduc- 
tors, 151  Mo.  App.  622,  132  S.  W. 
Rep.  307. 

Under  §§  3336, 3337,  South  Caro- 
lina Civ.  Code,  process  served  on 
an  agent  of  an  unincorporated 
association  will  bind  the  associa- 
tion. Appeal  of  Baylor,  93  S.  C. 
414,  77  S.  E.  Rep.  59. 

Service  of  a  citation  upon  a 
member  of  an  unincorporated  as- 
sociation who  is  the  duly  author- 
ized agent  of  the  officers  and  execu- 
tive board  to  supervise  and  direct 
the  affairs  of  the  association,  is 
service  upon  the  association. 
Slaughter  v.  American  Baptist  Pub- 
lication Soc.  (Tex.  Civ.  App.),  150 
S.  W.  Rep.  224;  Carleton  v.  Rob- 
erts, 1  Posey,  Unrep.  Cas.  (Tex.) 
587. 

32  2  Abb.  Dig.  Corp.  47,  note; 
Park  v.  Spaulding,  10  Hun,  128; 
Bullard  v.  Kinney,  10  Cal.  60;  Eb- 
binghousen  v.  Worth  Club,  4  Abb. 
New  Cas.  300. 


The  members  of  an  association 
organized  to  carry  on  a  business 
are  copartners.  Ranken  v.  Probey, 
131  N.  Y.  App.  Div.  328, 115  N.  Y. 
Supp.  832. 

An  unincorporated  association 
organized  to  buy  and  sell  lands  is 
essentially  a  partnership.  Cronk- 
rite  v.  Trexler,  187  Pa.  St.  100,  41 
Atl.  Rep.  22. 

A  voluntary  religious  association 
which  has  never  been  incorporated 
has  no  legal  entity  and  no  right  to 
sue  or  be  sued.  Presbyterian 
Church  of  Osceola  v.  Harkeu 
(Iowa),  158  N.  W.  Rep.  692. 

A  voluntary  association  whose 
only  function  is  the  promotion  of 
common  welfare,  and  from  which 
the  members  derive  no  specific  in- 
dividual profit,  may  not  be  sued 
in  its  common  name.  Wannan 
Steel  Castings  Co.  v.  Redondo 
Beach  Chamber  of  Commerce  (Cal. 
App.},  166  Pac.  Rep.  856. 

An  unincorporated  association 
may  be  sued  in  the  name  of  its 
president  or  treasurer,  but  action 
cannot  be  maintained  against 
both.  Mazurajtis  v.  Maknawycc, 
157  N.  Y.  Supp.  151,  93  Misc. 
337. 

In  order  to  obtain  judgment 
against  a  foreign  unincorporated 
voluntary  association  itself,  action 
should  be  brought  against  the  presi- 
dent or  treasurer.  Where,  how- 
ever, the  members  of  a  local  branch 
are  liable  for  the  full  amount  the 
action  should  be  brought  against 
the  local  president.  Stewart  v. 


ACTIONS   BY   AND   AGAINST  ASSOCIATIONS 


63 


A  stranger  may  prove  the  existence  of  the  association  and 
the  membership  of  the  defendants  by  parol,  without  ac- 
counting for  the  written  articles,33  unless  the  contents  of  the 
articles  are  necessary  to  establish  the  scope  of  the  agency  by 
which  the  contract  was  made.  Even  where  the  action  is  on  a 
contract  of  the  body,  plaintiff  is  not  bound  to  prove  that  he 
has  joined  all  the  associates,  unless  non- joinder  is  pleaded 


Thoburn,  171  App.  Div.  258,  157 
N.  Y.  Supp.  242. 

Any  unincorporated  association 
whether  foreign  or  domestic,  doing 
business  in  the  State,  may  sue  or 
be  sued  in  its  company  name, 
without  making  its  members  par- 
ties. St.  Louis  S.  W.  Ry.  Co.  v. 
Thompson  (Tex.  Civ.  App.),  192 
S.  W.  Rep.  1095. 

A  voluntary  association  whose 
business  and  object  are  the  pre- 
vention of  cruelty  to  children,  but 
whose  policies  are  not  in  any  man- 
ner subject  to  the  visitorial  control 
or  power  of  the  State,  cannot  avoid 
liability  for  malicious  prosecution, 
if  it  acts  wantonly,  maliciously  and 
without  reasonable  and  probable 
cause.  Fulton  v.  Ingalls,  170 
App.  Div.  904,  155  N.  Y.  Supp. 
788. 

An  association  which  is  not  or- 
ganized for  pecuniary  profit  can- 
not be  considered  a  partnership. 
Webster  v.  Taplin,  29  Ohi.  Cir. 
Ct.  R.  543,  aff'd  76  Ohio  St.  590, 
81  N.  E.  Rep.  1196. 

An  unincorporated  association  is 
not  a  person,  and  has  not  the  power 
to  sue  or  be  sued;  but  when  such 
association  has  been  organized,  and 
is  conducted,  for  profit  it  will  be 
treated  as  a  partnership,  and  its 
members  will  be  held  liable  as 


partners.  Slaughter  v.  American 
Baptist  Publication  Society  (Tex. 
Civ.  App.),  150  S.  W.  Rep.  224; 
Burton  v.  Grand  Rapids  School 
Furniture  Co.,  10  Tex.  Civ.  App. 
270,  31  S.  W.  Rep.  91, 

In  Wisconsin,  unless  a  non-stock 
corporation  is  organized  under 
§§  2002,  2007,  Stat.  of  1898,  it  can- 
not be  sued  in  its  own  name.  Craw- 
ley  v.  American  Society  of  Equity 
of  N.  A.,  153  Wis.  13,  139  N.  W. 
Rep.  734. 

The  members  of  an  unincor- 
porated company  are  responsible 
in  their  individual  capacities  to 
the  full  amount  of  every  debt 
justly  due  from  the  company. 
Jenne  v.  Matlack,  19  Ky.  Law  Rep. 
503,  41  S.  W.  Rep.  11. 

In  the  case  of  religious  and  elee- 
mosynary associations,  the  mem- 
bers and  managing  committees  who 
incur  a  liability,  or  assent  to  or 
subsequently  ratify  it,  become  per- 
sonally liable.  A  church,  being 
an  unincorporated  association,  can- 
not be  sued.  Methodist  Episcopal 
Church  South  p.  Clifton,  34  Tex. 
Civ.  App.  248,  78  S.  W.  Rep. 
732. 

"Cutler  v.  Thomas,  25  Vt.  73; 
though  otherwise  in  an  action  be- 
tween the  members. 


64 


ACTIONS   BY   AND   AGAINST  ASSOCIATIONS 


with  names,  etc. ; 34  but  if  any  of  the  defendants  denies  the  al- 
leged joint  contract,  plaintiff  must  prove  the  joint  liability 


»« Fowler  v.  Kennedy,  2  Abb.  Pr. 
(N.  Y.)  347. 

If  the  plaintiff  is  a  voluntary  as- 
sociation and  all  its  members  are 
not  joined  as  parties  plaintiff,  the 
proceeding  is  irregular  but  not 
void.  The  question  should  be 
raised  by  demurrer,  or  by  plea 
in  the  nature  of  plea  in  abatement. 
Franklin  Union  v.  Peo.,  121  111. 
App.  647,  aff'd  220  111.  355, 77  N.  E. 
Rep.  176,  110  Am.  St.  Rep.  248, 
4  L.  R.  A.  (N.  S.)  1001.  Citing 
Iowa  County  v.  Mineral  Point  R. 
Co.,  24  Wis.  93;  Keyes  v.  Ellen- 
sohn,  82  Hun,  13,  30  N.  Y.  Supp. 
1035,  aff'd  144  N.  Y.  700,  39  N.  E. 
Rep.  857. 

Where  a  plaintiff  elects  under 
§  1923,  N.  Y.  Code  Civ.  Pro.,  to 
bring  his  action  against  the  individ- 
ual members  of  an  association, 
any  defect  of  parties  defendant 
must  be  raised  by  demurrer  or 
answer  on  that  ground,  otherwise 
it  is  deemed  waived.  Peckham  v. 
Wentworth,  116  N.  Y.  Supp.  781. 

The  defense  by  the  defendant 
union  that  it  is  unincorporated 
and  cannot  be  sued,  must  be  spe- 
cially pleaded  before  trial.  Krug 
Furniture  Co.  v.  Berlin  Union  of 
Amalgamated  Woodworkers,  5  Ont. 
Law.  Rep.  463.  Citing,  Taff  Vale 
R.  Co.  v.  Amalgamated  Soc.  of  R. 
Servants  (1901),  A.  C.  426,  27 
E.  R.  C.  639, 1  B.  R.  C.  832. 

Unless  the  association  complies 
with  the  act  requiring  the  filing 
of  a  certificate  it  cannot  sue  in  its 
own  name,  irrespective  of  whether 


the  question  is  raised  by  plea. 
Moore  v.  Hillsdale  County  Tel.  Co., 
171  Mich.  388,  137  N.  W.  Rep.  241 

Under  §  301  of  Article  23,  Md. 
Code,  a  joint-stock  company  or 
association  may  sue  and  be  sued 
in  its  company  name,  but  this  does 
not  take  away  the  common-law 
right  to  bring  the  action  against 
all  the  members.  Littleton  v. 
Wells,  etc.,  Council,  No.  14  J.  0. 
U.  A.  M.,  98  Md.  453,  56  All. 
Rep.  798. 

Under  §  1919,  N.  Y.  Code  Civ. 
Pro.,  which  authorizes  the  bring- 
ing of  an  action  against  the  presi- 
dent or  treasurer  of  an  unincorpo- 
rated association  upon  any  cause 
which  may  be  maintained  against 
all  the  members,  no  action  can  be 
brought  unless  the  debt  upon  which 
the  plaintiff  seeks  to  recover  is  one 
for  which  all  the  members  are 
liable.  Strauss  v.  Thoman,  *60 
N.  Y.  Misc.  72,  111  N.  Y.  Supp. 
745. 

As  to  what  is  sufficient  allega- 
tion of  the  existence  of  an  associa- 
tion, to  comply  with  §  1919,  N.  Y. 
Code  Civ.  Pro.,  see  Schwarcz  v. 
International  Ladies'  Garment 
Workers  Union,  68  N.  Y.  Misc. 
528,  124  N.  Y.  Supp.  968. 

An  action  begun  hi  the  name  of 
the  president  of  an  unincorporated 
association  in  compliance  with 
§  1919  of  N.  Y.  Code  Civ.  Pro.  can- 
not subsequently  be  removed  to 
the  Circuit  Court  of  the  U.  S., 
because  the  company  cannot  have 
citizenship  attributed  to  it  as  an 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


65 


of  all  the  defendants  named  on  the  record.    It  is  not  enough 
to  show  a  several  contract  by  that  part  of  the  defendants 


entity.  Taylor  v.  Weir,  96  C.  C.  A. 
438,  171  Fed.  Rep.  636. 

Service  of  a  summons  upon  the 
secretary  of  an  unincorporated 
association  is  not  sufficient  under 
§1919,  N.  Y.  Code  Civ.  Pro.; 
Hanke  v.  Cigar  Makers'  Interna- 
tional Union,  27  N.  Y.  Misc.  529, 
58  N.  Y.  Supp.  412. 

Section  1919,  N.  Y.  Code  Civ. 
Pro.,  does  not  prohibit  joining  the 
members  of  an  association  as  par- 
ties defendant  with  the  president 
where  the  individual  members  as 
well  as  the  association  are  charged 
with  wrongdoing.  April  v.  Baird, 
32  N.  Y.  App.  Div.  226,  52  N.  Y. 
Supp.  973,  28  N.  Y.  Civ.  Pro.  R. 
29,  6  N.  Y.  Ann.  Cas.  129. 

Political  parties,  their  conven- 
tions and  committees  are  included 
within  the  terms  of  §  1919,  N.  Y. 
Code  Civ.  Pro.;  Brown  v.  Cole, 
54  Misc.  278,  104  N.  Y.  Supp.  109. 

An  action  in  tort  may  be  main- 
tained against  an  association  as 
such  under  §  1919,  N.  Y.  Code  Civ. 
Pro.,  where  all  the  members  are 
charged  with  committing  the  wrong 
through  the  association.  Rourke  v. 
Elk  Drug  Co.,  75  N.  Y.  App.  Div. 
145,  77  N.  Y.  Supp.  373. 

Where  its  members  are  numerous, 
a  voluntary  organization  may  sue 
or  be  sued  in  equity  in  the  name  of 
a  few  members  for  the  benefit 
of  the  whole.  Chicago  Typograph- 
cal  Union  v.  Barnes,  134  111.  App. 
11,  aff'd  232  111.  402,  83  N.  E. 
Rep.  932,  122  Am.  St.  Rep.  129, 
14  L.  R.  A.  (N.  S.)  1150;  Bronson  v. 


Industrial  Workers  of  the  World, 
30  Nev.  270,  95  Pac.  Rep.  354; 
Klein  v.  Rand,  35  Pa.  Super.  Ct. 
263;  Pearson  v.  Anderburg,  28 
Utah,  495,  80  Pac.  Rep.  307;  Flor- 
ence v.  Helms,  136  Cal.  613,  69 
Pac.  Rep.  429. 

There  is  no  such  legal  entity 
as  an  unincorporated  association. 
Every  member  of  such  association 
may  be  sued  and  if  the  members 
are  numerous,  some  officers  or 
members  may  be  made  parties  de- 
fendant as  representatives  of  a 
class.  Bossert  v.  Dhuy,  166  App. 
Div.  251,  151  N.  Y.  Supp.  877. 

An  unincorporated  association 
may  be  sued  in  equity  in  the  name 
of  a  few  members  having  the  same 
interest  as  all.  Maisch  v.  Order  of 
Americus,  223  Pa.  199,  72  Atl. 
Rep.  528. 

Voluntary  associations  are  not 
suable  entities.  They  must  be 
sued  in  the  name  of  all  members 
or  a  few  for  all  and  the  bill  must 
describe  them  as  members.  Ameri- 
can Steel  &  Wire  Co.  v.  Wire 
Drawers',  etc.,  Unions,  90  Fed. 
Rep.  598;  Kimball  v.  Lower  Co- 
lumbia Fire  Ass'n,  67  Ore.  249, 135 
Pac.  Rep.  877. 

An  unincorporated  association 
cannot  sue  in  its  own  name.  Fran- 
cis v.  Perry,  82  N.  Y.  Misc.  271, 
144  N.  Y.  Supp.  167;  Cain  v. 
Armenia  Lodge,  No.  1930,  G.  N. 
0.  0.  F.,  12  Ga.  App.  251,  77  S.  E. 
Rep.  184. 

An  unincorporated  sanitarium 
cannot  be  held  responsible  for  the 


66 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


who  appear.  Where,  however,  the  liability  of  the  associa- 
tion is  proved,  it  is  enough  for  the  plaintiff  to  show  that  the 
litigating  defendant  was  a  member  of  the  association,  and 
so  jointly  liable  with  those  whose  membership  is  proved  or 
admitted.35 


malpractice  of  one  of  the  physicians 
conducting  it.  Wharton  r.  Warner, 
75  Wash.  470,  135  Pac.  Rep.  235. 

The  proper  method  of  suing  an 
unincorporated  association  is  to 
institute  a  suit  in  equity  against 
some  of  the  members  as  represent- 
ing themselves  and  all  others  hav- 
ing the  same  interest,  and  after 
judgment,  to  compel  the  defend- 
ants to  see  that  the  treasury  of  the 
association  pays' the  claim.  Wolf 
v.  Limestone  Council,  No.  373 
0.  I.  A.,  233  Pa.  357,  82  Atl.  Rep. 
499,  citing  Maisch  v.  Order  of  Amer- 
icus,  223  Pa.  199,  72  Atl.  Rep.  528. 

Under  §2610,  Wisconsin  Stat. 
1911,  all  the  members  should  be 
made  parties.  Conway  v.  Zender, 
154  Wis.  479,  143  N.  W.  Rep.  162. 

"Downing  v.  Mann,  3  E.  D. 
Smith,  36.  Compare  Mott  v. 
Petrie,  15  Wend.  317. 

Under  pleas  of  non- joint  liability 
by  the  defendants  it  is  incumbent 
upon  the  plaintiff  to  show,  by  its 
evidence,  a  joint  liability  of  all  the 
defendants,  including  those  who 
defaulted,  before  there  could  be  a 
recovery  without  an  amendment 
of  the  pleadings,  and  a  dismissal 
as  to  any  of  the  defendants  who 
were  not  shown  to  be  jointly  liable 
with  their  co-defendants.  M.  W. 
Powell  Co.  v.  Finn,  101  111.  App. 
512,  aff'd  in  198  111.  567,  64  N.  E. 
Rep.  1036. 


The  members  of  the  Socialist 
Labor  Party,  held  not  individually 
liable  for  the  publication  of  a  news- 
paper by  its  board  of  trustees, 
which  newspaper  was  designated 
by  the  constitution  of  the  party  as 
its  official  organ.  Lightbourn  v. 
Walsh,  97  N.  Y.  App.  Div.  187,  89 
N.  Y.  Supp.  856. 

An  unincorporated  association, 
formed  for  pecuniary  profit,  is  a 
partnership.  A  contract  made  by 
it  is  a  joint  obligation,  and  where 
a  judgment  is  taken  against  one  of 
the  joint  debtors,  the  cause  of  ac- 
tion against  all  is  merged  in  the 
judgment.  United  Press  v.  Abell 
Co.,  87  N.  Y.  App.  Div.  344,  84 
N.  Y.  Supp.  425,  citing  Hecke- 
mann  v.  Young,  134  N.  Y.  170,  31 
N.  E.  Rep.  513,  30  Am.  St.  Rep. 
655. 

In  Michigan  while  the  statute,  3 
Comp.  Laws,  §  10025,  authorizes 
suit  to  be  brought  by  or  against 
an  unincorporated  association  it 
does  not  preclude  a  litigant  from 
proceeding  against  the  members. 
Detroit  Light  Guard  Band  v. 
First  Mich.  Independent  Infantry, 
134  Mich.  598,  96  N.  W.  Rep.  934. 

Where  an  action  is  brought 
against  the  individual  members  of 
an  unincorporated  association, 
upon  a  judgment  previously  ob- 
tained against  the  association,  the 
plaintiff  must  allege  and  prove  such 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


67 


Membership  may  be  proved  by  any  evidence  which  suf- 
ficiently identifies  the  member  with  the  association  to  show 


facts  as  are  sufficient  to  make  out 
the  original  cause  of  action  against 
the  association.  Barasch  v.  Rie- 
mer,  59  N.  Y.  Misc.  453,  110  N.  Y. 
Supp.  1053. 

A  person  assaulted  by  members 
of  an  unincorporated  association 
cannot  maintain  an  action  for 
damages  against  the  association 
unless  he  shows  that  the  wrong 
complained  of  was  committed  by 
all  of  the  members  through  the 
association.  Mazurajtis  v.  Mak- 
nawyce,  157  N.  Y.  Supp.  151, 
93  Misc.  337. 

The  members  of  an  unincor- 
porated association  are  respon- 
sible in  their  individual  capacities 
to  the  full  amount  of  every  debt 
justly  due  from  the  association. 
Jenne  v.  Matlack,  19  Ky.  Law  Rep. 
503,  41  S.  W.  Rep.  11. 

In  a  proceeding  or  action  against 
a  voluntary  unincorporated  as- 
sociation to  recover  damages,  facts 
must  be  alleged  and  proved  which 
render  all  the  members  of  such 
association  liable  for  the  sum 
claimed.  People  v.  Brotherhood 
of  Painters,  etc.,  218  N.  Y.  115, 
112  N.  E.  Rep.  752. 

If  a  debt  is  of  such  a  nature  as 
to  be  binding  on  an  association  as 
a  whole  each  member  is  individu- 
ally liable  for  the  entire  debt. 
Webster  v.  San  Joaquin  Fruit,  etc., 
Assn.,  32  Cal.  App.  264,  162  Pac. 
Rep.  654. 

Where  an  indebtedness  is  in- 
curred by  an  association  in  carry- 
ing on  the  business  for  which  it 


was  organized,  the  members  are 
individually  liable.  Bennett  t;. 
Lathrop,  71  Conn.  613,  42  Atl. 
Rep.  634,  71  Am.  St.  Rep.  222. 

The  individual  members  of  an 
association  are  responsible  for  its 
acts.  Jenne  v.  Matlack,  19  Ky. 
Law  Rep.  503,  11  S.  W.  Rep.  11; 
Thompson  v.  Garrison,  22  Kan. 
765;  McKenney  v.  Bowie,  94  Me. 
397,  47  Atl.  Rep.  918. 

The  members  of  an  unincorpo- 
rated association  are  responsible  in- 
dividually and  jointly  for  the  acts 
of  the  association.  Inglis  v.  Miller- 
burg  Driving  Ass'n,  169  Misc. 
311, 136  N.  W.  Rep.  443,  Ann.  Gas. 
1913  D.  1174. 

That  a  person  was  influenced  by 
the  advice  and  belief  that  he  would 
not  be  liable  for  any  of  the  debts 
of  an  association  and  so  became  a 
member  is  immaterial.  Fetner  v. 
American  Nat'l  Bank,  15  Ga.  App. 
736,  84  S.  E.  Rep.  185. 

The  liability  of  the  members  of 
a  voluntary  association  is  joint 
and  several  and  each  member  is 
individually  liable  for  all  of  the 
debts  of  the  association  to  third 
parties.  Nolan  v.  McNamee,  82 
Wash.  585,  144  Pac.  Rep.  904. 

Members  of  an  association  will 
not  be  bound  by  the  acts  of  the 
treasurer  who  pays  his  individual 
debts  out  of  funds  of  the  associa- 
tion by  check  signed  by  him  as 
treasurer.  Washbon  v.  Hixon,  87 
Kan.  310,  124  Pac.  Rep.  366. 

After  an  unincorporated  as- 
sociation has  elected  officers  and 


68 


ACTIONS   BY   AND    AGAINST   ASSOCIATIONS 


that  he  allowed  it  to  be  his  agent  for  the  purpose  of  the 
transactions; 36  for  instance,  the  fact  that  he  subscribed  un- 
conditionally, though  he  never  took  any  stock; 37  or  that  he 
paid  up  a  subscription  made  in  his  name.38 

And  actual  membership  having  been  shown,  it  is  not  nec- 
essary that  the  plaintiff  should  have  known  of  or  relied  on  it 
in  giving  credit.39 

Defendant  is  exonerated  by  proof  of  a  termination  of 
membership  before  the  debt  was  contracted,  unless  the 
plaintiff  dealt  with  the  association  knowning  of  and  re- 
lying on  defendant's  membership,  hi  which  case  defendant 
must  prove  notice  of  his  withdrawal,  as  in  case  of  a  partner- 
ship.40 

All  the  members  are  presumably  cognizant  of  the  rules 


given  them  full  charge  of  its  affairs, 
a  member  cannot  bind  the  associ- 
ation by  his  acts.  Lambeth  v. 
Vawter,  6  Robt.  (La.)  127. 

An  association  will  not  be  bound 
by  a  false  statement  made  by  one 
of  its  members  to  a  prospective 
surety  for  the  association's  treas- 
urer, unless  such  member  had  gen- 
eral or  special  authority  to  act  in 
the  matter.  Sewell  v.  Breathitt 
Lodge,  150  Ky.  542,  150  S.  W. 
Rep.  677. 

The  officers  of  an  unincorpor- 
ated association  who  signed  a  con- 
tract for  certain  entertainments  at 
an  agreed  price  are  individually 
liable  for  such  price  although  they 
did  not  think  or  believe  that  they 
would  incur  such  liability.  Alka- 
hest Lyceum  System  v.  Feather- 
stone,  113  Miss.  226,  74  So.  Rep. 
151. 

The  endorsement  of  a  note  by  a 
member  of  the  association  to  which 
it  was  made  cannot  be  construed 
to  be  an  assignment  of  the  note  by 


the  association,  even  though  such 
member  was  the  treasurer  of  the 
association,  and  especially  if  he 
did  not  sign  as  treasurer.  Naka- 
gawa  ».  Okamoto,  164  Cal.  718,  130 
Pac.  Rep.  707. 

The  minute  book  is  some  evi- 
dence of  any  action  taken  by  an 
association.  Francis  v.  Perry,  82 
N.  Y.  Misc.  271,  144  N.  Y.  Supp. 
167. 

36  Taft  v.  Warde,  111  Mass.  518. 

"Spear  v.  Crawford,  14  Wend. 
20,  28  Am.  Div.  513;  Bodwell  v. 
Eastman,  106  Mass.  525. 

38  Frost     v.     Walker,    60    Me. 
468. 

39  Bodwell  v.  Eastman,  106  Mass. 
525. 

Members  of  a  congregation  who 
act  for  the  congregation  are  in- 
dividually responsible  irrespective 
of  whether  they  were  a  committee 
or  elders.  Thompson  v.  Garrison, 
22  Kan.  765. 

40  Park   v.   Spaulding,    10   Hun, 
128. 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS  69 

contained  in  their  record  openly  kept  within  access  of  the 
members.41 

2.  Joint-Stock  Companies,  etc. 

Joint-stock  companies  and  some  other  associations  are 
organized  under  laws  giving  to  members  of  voluntary  as- 
sociations without  ful  incorporation  some  of  the  immunities 
of  corporations,  principally  in  three  ways:  1.  Allowing  suits 
to  be  in  the  name  of  an  officer,  instead  of  joining  the  mem- 
bers; 2.  allowing  withdrawal,  by  transfer  of  shares,  without 
dissolution  of  the  organization;  and,  3.  requiring  judgment  to 
be  had  and  enforced  against  a  member.  Under  these  statutes 
the  association  is  deemed  the  party,  although  an  officer  be 
named  on  the  record;  and  the  question  whether  rules  of 
evidence  drawn  from  the  law  of  partnership  or  from  the  law 
of  corporations,  should  control,  depends  upon  the  same  tests 
as  hi  a  case  of  a  mere  voluntary  association.  The  better 
opinion  is  that  a  foreign  joint-stock  company  formed  under 
such  laws  is  to  be  treated,  as  far  as  may  be,  as  a  corporation, 
not  a  mere  partnership.42 

«  Rose  N.  P.  38;  1  Phill.  Ev.  447.  132  S.  W.  Rep.  307;  Hanley  v.  Elm 
In  order  to  maintain  an  action  Grove  Mut.  Telephone  Co.,  150 
against  a  voluntary  association  on  Iowa,  198,  129  N.  W.  Rep.  807. 
a  certificate  of  indebtedness  plain-  In  Michigan  under  2  Comp. 
tiff  must  show  that  all  the  mem-  Laws,  §  6083,  it  is  necessary  to  have 
bers  are  liable  and  that  the  officers  two  managers  of  a  limited  partner- 
who  executed  the  certificate  had  ship  association  execute  a  contract 
authority  to  pledge  the  personal  in  the  name  of  the  association  in 
credit  of  the  members.  Davis  v.  order  to  bind  it  in  an  amount  ex- 
Young,  123  N.  Y.  Supp.  363.  ceeding  $500.  Geel  v.  Goulden, 
The  courts  will  not  undertake  to  168  Mich.  413, 134  N.  W.  Rep.  484. 
regulate  the  internal  affairs  of  "Westcott  v.  Fargo,  61  N.  Y. 
voluntary  associations;  and  when  542,  19  Am.  Rep.  300;  Liverpool 
property  rights  are  involved  they  Ins.  Co.  v.  Massachusetts,  10  Wall, 
will  pass  upon  questions  affecting  566.  Contra,  Gottr.  Dinsmore,  111 
internal  affairs  only  so  far  as  it  is  Mass.  45;  Taft  v.  Ward,  106  Mass, 
necessary  to  protect  those  rights.  518. 

Crutcher  v.  Eastern  Division  No.  In  suing  a  limited  partnership 

321,  O.  R.  C.,  151  Mo.  App.  622,  all  the  members  must  be  served  in 


70 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


order  to  hold  them  individually 
liable  upon  the  judgment,  except 
when  one  member  has  authority 
to  represent  the  rest  for  the  pur- 
pose of  the  suit.  Romona  Oolitic 
Stone  Co.  v.  Bolger,  179  Fed.  Rep. 
979. 

While  a  lodge  by  the  terms  of 
its  charter  has  power  to  sue,  such 
power  is  not  necessarily  exclusive, 
but  the  master  and  wardens  in 
whom  the  legal  title  to  property 
is  vested  as  trustees  for  the  lodge 
have  power  to  sue  to  protect  it. 
Rhodes  v.  Maret,  45  Tex.  Civ. 
App.  593,  101  S.  W.  Rep.  278. 

In  New  Jersey,  suit  may  be 
brought  against  the  treasurer,  in 
his  representative  capacity,  of  the 
United  States  Express  Company, 
which  is  a  joimVstock  company 
formed  under  the  laws  of  New 
York,  which  authorize  suit  in  the 
name  of  the  president  or  treasurer. 
Edgeworth  v.  Wood,  58  N.  J.  L. 
463,  33  Atl.  Rep.  940. 

The  National  League  and  Amer- 
ican Association  of  Professional 
Baseball  Clubs  is  not  a  joint-stock 
company  nor  a  corporation  nor  a 
partnership  and  the  laws  appli- 
cable to  a  partnership  cannot  be 
applied  to  it.  Boston  Base  Ball 
Assoc.  v.  Brooklyn  Base  Ball  Club, 
37  N.  Y.  Misc.  521,  75  N.  Y.  Supp. 
1076,  citing  Ostrom  v.  Greene,  161 
N.  Y.  353,  55  N.  E.  Rep.  919. 

At  common  law  and  without 
statutory  authority  persons  may 
associate  themselves  together  in  a 
joint-stock  company  with  trans- 
ferable shares.  Roberts  v.  Ander- 
son, 226  Fed.  Rep.  7,  141  C.  C.  A. 
121. 


At  common  law  all  members  of  a 
joint-stock  company  or  association 
were  necessary  parties  to  an  action 
by  or  against  such  company  or 
association,  whatever  the  number 
of  its  members  might  be.  It  is 
only  when  a  statute  gives  the 
right  that  such  company  may  sue 
or  be  sued  in  the  name  of  an  officer. 
Roberts  v.  Anderson,  226  Fed.  Rep. 
7,  141  C.  C.  A.  121. 

A  joint-stock  company  having 
powers  and  privileges  not  possessed 
by  individuals  and  partnerships 
must  be  treated  as  a  corporation 
and  as  such  can  sue  and  be  sued 
and  complain  and  defend  in  any 
court  of  law  or  equity  as  a  legal 
entity.  Williams  t>.  U.  S.  Express 
Co.,  195  Mo.  App.  362,  191  S.  W. 
Rep.  1087. 

Where  an  association  with  many 
members  is  represented  by  a  com- 
mittee or  regularly  appointed  of- 
ficers, if  such  representatives  be 
brought  in,  it  will  be  deemed  that 
the  association,  as  such,  is  before 
the  court.  Spaulding  v.  Evenson, 
149  Fed.  Rep.  913,  aff'd  150  Fed. 
Rep.  517, 82  C.  C.  A.  263, 9  L.  R.  A. 
N.  S.  904. 

An  action  in  the  name  of  a 
church,  lodge,  society  or  other 
unincorporated  organization  may 
be  brought  in  the  name  of  the  or- 
ganization by  one  or  more  of  the 
members  who  are  acting  with  the 
consent  of  the  other  members  or  a 
majority  of  them.  Payne  v.  Mc- 
Clure  Lodge,  No.  539  (Ky.),  115 
S.  W.  Rep.  764. 

The  fact  that  a  joint-stock  com- 
pany is  organized  under  the  laws 
of  the  State  of  New  York  does  not 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


71 


make  the  company  a  citizen  of 
New  York.  The  company,  being 
a  partnership,  its  citizenship  de- 
pends upon  the  citizenship  of  its 
members.  Rountree  v.  Adams  Ex- 
press Co.,  165  Fed.  Rep.  152,  91 
C.  C.  A.  186. 

The  American  News  Company, 
being  a  foreign  joint-stock  com- 
pany and  not  a  corporation,  and 
disqualified  by  the  law  of  Mis- 
souri from  maintaining  actions  in 
the  courts  of  that  state,  was  not 
deprived  of  its  right  to  maintain 
them  hi  the  national  courts,  for 
the  jurisdiction  of  the  latter  was 
not  granted,  and  it  may  not  be 
revoked,  annulled,  or  impaired  by 
the  law  or  act  of  any  State.  John- 
son v.  St.  Louis,  172  Fed.  Rep.  31, 
96  C.  C.  A.  617,  18  Ann.  Cas.  949. 

The  Adams  Express  Company, 
being  a  joint-stock  association, 
cannot  maintain  an  action  at  law 
in  the  name  of  the  association  nor 
in  the  name  of  its  officers  as  trus- 
tees. Adams  Express  Co.  v.  Metro- 
politan St.  Ry.  Co.,  126  Mo.  App. 
471,  103  S.  W.  Rep.  583. 

The  president  of  a  joint-stock 
association  does  not  own  the  prop- 
erty of  the  association,  and  where 
the  action  is  brought  against  him 
as  president  of  the  association  and 
a  warrant  of  attachment  issued 
against  the  property  of  the  defend- 
ant, the  property  of  the  association 
cannot  be  seized  thereunder;  a 
motion  to  vacate  the  attachment 
will  lie.  Mertz  v.  Fenouillet,  13 
N.  Y.  App.  Div.  222,  43  N.  Y. 
Supp.  217,  26  N.  Y.  Civ.  Pro.  178, 
3  N.  Y.  Ann.  Cas.  353. 

As  to  endorsement  of  a  note  by 


an  unincorporated  association,  see 
Shaw,  Kendall  &  Co.  v.  Brown, 
128  Mich.  573,  87  N.  W.  Rep.  757. 

For  statement  as  to  legal  nature 
of  a  joint-stock  association,  see 
Hibbs  v.  Brown,  112  N.  Y.  App. 
Div.  214,  219,  220,  98  N.  Y.  Supp. 
353,  aff'd  in  190  N.  Y.  167,  82 
N.  E.  Rep.  1108.  See  also  Spots- 
wood  v.  Morris,  12  Idaho,  360,  85 
Pac.  Rep.  1094,  6  L.  R.  A.  N.  S. 
665. 

A  joint-stock  company  is  gen- 
erally classified  as  a  partnership 
possessing  some  of  the  characteris- 
tics of  a  corporation.  Rocky 
Mountain  Stud  Farm  Co.  v.  Lunt, 
46  Utah,  299,  151  Pac.  Rep.  521. 

Where  the  plaintiff  alleged  hi  her 
complaint  that  the  defendant  was 
a  corporation  and  sued  it  as  such, 
she  cannot  rely  upon  the  averment 
hi  the  answer  that  the  defendant 
was  an  unincorporated  stock  com- 
pany, but  is  put  to  her  proof  as 
regards  the  defendant's  corporate 
existence.  White  v.  Shipley,  48 
Utah,  496,  160  Pac.  Rep.  441. 

Two  or  more  persons  who  asso- 
ciate in  business  under  a  common 
name  under  Cal.  Code  Civ.  Pro., 
§  338,  may  be  sued  in  such  name. 
Hewitt  v.  Storey,  39  Fed.  Rep.  719. 

Service  of  process  against  a  joint- 
stock  association  may  be  made  on 
the  head  officer.  State  v.  Adams 
Express  Co.,  66  Minn.  271,  68 
N.  W.  Rep.  1085,  38  L.  R.  A.  225. 

The  provisions  of  the  statutes  of 
another  state  that  suits  shall  be 
prosecuted  against  the  officers  of  a 
joint-stock  association,  are  of  local 
operation  and  not  binding  hi 
Massachusetts.  Boston,  etc.,  R. 


72 


ACTIONS   BY   AND   AGAINST   ASSOCIATIONS 


Co.  v,  Pearson,  128  Mass.  445; 
Gott  v.  Dinsmore,  111  Mass. 
45. 

The  members  of  a  joint-stock  as- 
sociation may  be  sued  for  the  torts 
of  the  association  without  being 
made  a  party  to  the  action.  Roller 
v.  Madison,  172  Ky.  693,  189  S. 
W.  Rep.  914. 

The  fact  that  a  judgment  against 
a  joint-stock  association  does  not 
formally  read  that  the  property  of 
the  association  shall  first  be  ex- 
hausted before  issuing  as  to  in- 
dividuals does  not  vitiate  the  judg- 


ment and  the  plaintiff  is  not  bound 
to  prove  that  all  the  defendants 
are  bound  in  order  to  recover 
against  any  one  of  them.  Bastrop 
&  Austin  Bayou  Rice  Growers' 
Ass'n  v.  Cochran  (Tex.  Civ.  App.), 
171  S.  W.  Rep.  294. 

Where  land  is  conveyed  to  trus- 
tees and  their  successors  duly  ap- 
pointed and  qualified,  the  trustees, 
and  not  the  members  of  a  joint- 
stock  company  hold  the  title. 
Reffon  Realty  Corp.  v.  Adams 
Land  &  Bldg.  Co.,  128  Md.  656, 
98  Atl.  Rep.  199. 


CHAPTER  III 


ACTIONS  BY  AND  AGAINST  CORPORATIONS 


I.  PROVING  CORPORATE  EXISTENCE. 

1.  Pleading. 

2.  Strict  proof  not  usually  re- 

quired. 

3.  Exceptional  cases. 

4.  Incorporation  incidentally  in 

issue. 

5.  Legislative    sanction   neces- 

sary. 

6.  Domestic   corporation — gen- 

eral law  or  charter. 

7.  Evidence  of  authenticity  of 

statute. 

8.  National  Bank. 

9.  Corporation  of  sister  State. 

10.  Corporation  of  foreign  State. 

11.  Mode  of  proving  de  facto  ex- 

istence. 

12.  Acceptance  of  charter. 

13.  Organization  under  general 

law. 

14.  Official  permission  to  do  cor- 

porate business. 

15.  Disregard  of  statute  condi- 

tions. 

16.  Effect  of  proof  of  user. 

17.  Mode  of  proving  user. 

18.  Admission  of  incorporation. 

19.  Estoppel   against  the   com- 

pany. 

20.  Estoppel  against  those  deal- 

ing with  the  company. 

21.  Estoppel    against    members 

and  subscribers. 

22.  The    estoppel    liberally   ap- 

plied. 


23.  General  principle  as  to  proof 

of  incorporation. 

24.  Materiality  of  date. 

25.  Misnomer. 

26.  Fraud,  forfeiture  or  non-user. 

II.  CORPORATE  POWERS  IN  GEN- 

ERAL. 

27.  New  powers. 

28.  Distinction  between  original 

powers  of  corporation  and 
delegated  powers  of  of- 
ficers. 

29.  Evidence   of   delegation   of 

power. 

30.  Presumptions  as  to  corporate 

acts. 

III.  CONTRACTS  BY  A  CORPORATION. 

31.  Implied  promises. 

32.  Simple  contracts  in  writing. 

33.  Sealed  instruments. 

34.  Corporate     acceptance     of 

deeds,  etc. 

35.  Contract  ambiguous   as   to 

party. 

IV.  TORTS  BY  A  CORPORATION. 

36.  False     representations     by 

meeting. 

37.  Frauds  by  directors. 

38.  Wrongs  by  officers  or  agents. 

V.  MEETINGS  AND  BY-LAWS. 

39.  Evidence    of    regularity    of 

meetings. 

73 


74 


ACTIONS  BY   AND   AGAINST   CORPORATIONS 


40.  Acts  by  parol. 

41.  Pleading  by-laws,  etc. 

42.  Proof  of  by-laws. 

VI.  AUTHORITY       OF      OFFICERS, 

AGENTS  AND  MEMBERS. 

43.  Evidence  of  appointment  of 

officers  and  agents. 

44.  Evidence    of    express    au- 

thority. 

45.  Implied  scope  of  authority. 

46.  Authority  implied  in  title  of 

office. 

47.  Testimony  of  officer  or  agent. 

48.  Ratification. 

VII.  ADMISSIONS,      DECLARATIONS 

AND  NOTICE. 

49.  Admissions  and  declarations 

of  members. 

50.  Admissions  and  declarations 

of  officers,  etc.,  authorized 
to  speak. 

51.  Admissions  and  declarations 

made  as  part  of  res  gestce. 


52.  Admissions  and  declarations 

before  incorporation. 

53.  Notice. 

VTII.  BOOKS  AND  PAPERS. 

54.  Corporation  books  and  pa- 

pers as  evidence. 

55.  Statutory  record. 

56.  Minutes  of  proceedings. 

57.  Against  whom  evidence  of  cor- 

porate acts  is  competent. 

58.  The  minutes  not  exclusively 

the  best  evidence. 

59.  Authentication  of  corporate 

books  when  produced. 

60.  Rough  minutes. 

61.  Competency  of  copies. 

62.  Reports. 

63.  Foundation  of  secondary  evi- 

dence. 

64.  Notice  to  produce. 

65.  Parol  evidence  to  vary  cor- 

porate minutes. 

66.  Accounts   and   business  en- 

tries. 


I.  PROVING  CORPORATE  EXISTENCE 

1.  Pleading  as  to  Corporate  Existence. 

It  was  the  general  rule  that  a  corporation,  whether  do- 
mestic 43  or  foreign,44  suing  in  a  name  appropriate  to  a  cor- 


41  Phoenix  Bank  of  New  York  v. 
Donnell,  40  N.  Y.  410,  aff'g  41 
Barb.  571,  and  cases  cited. 

The  change  in  the  name  of  a 
corporation  amounts  simply  to  an 
amendment  of  its  charter  in  that 
respect.  It  remains  and  continues 
to  be,  the  original  corporation  with 
all  of  the  powers  and  liabilities  pos- 
sessed and  assumed  prior  to  the 
amendment.  Board  of  Commis- 
sioners of  Mattamuskeet  Drainage 


Dist.  v.  A.  V.  Willis  &  Sons,  236 
Fed.  Rep.  362. 

Where  the  name  of  a  corporation 
has  been  legally  changed,  it  is 
suable  in  the  new  corporate  name, 
although  the  alleged  cause  of  ac- 
tion may  have  arisen  before  the 
change.  Porter  v.  State  Grand 
Lodge  No.  7,  146  Ga.  13,  90  S.  E. 
Rep.  281. 

44  Camden  &  Amboy  R.  R.  Co. 
r.  Remer,  4  Barb.  127,  and  cases 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


75 


porate  body,  may  prove  its  incorporation  when  necessary, 
even  though  not  alleged  in  its  pleading.45  But  now,  in  New 
'York,  it  is  provided  by  statute  that  in  an  action  brought 
by  or  against  a  corporation,  the  complaint  must  aver  that 
the  plaintiff,  or  the  defendant,  as  the  case  may  be,  is  a 
corporation ;  must  state  whether  it  is  a  domestic  corporation 
or  a  foreign  corporation;  and  if  the  latter,  the  State,  coun- 
try, or  government,  by  or  under  whose  laws  it  was  created.46 


cited;  Paine  v.  Lake  Erie,  etc.,  Co., 
31  Ind.  310,  354;  s.  c.,  1  Withr. 
Corp.  Cas.  386,  408. 

Where  there  has  been  a  change 
of  the  name  of  a  corporation,  the 
corporation  should  sue  by  its  pres- 
ent name;  and  when  the  contract 
sued  on  was  made  with  the  cor- 
poration before  the  name  was 
changed,  it  is  sufficient  to  allege 
no  more  than  that  the  plaintiff 
entered  into  the  contract  by  its 
former  corporate  name.  W.  F. 
Rawleigh  Co.  v.  Grigg  (Mo.  App.), 
191  S.  W.  Rep.  1019. 

"Marine,  etc.,  Ins.  Bank  v. 
Jauncey,  1  Barb.  486.  But  where 
the  provisions  of  a  private  or  for- 
eign charter  are  material  to  the 
cause  of  action,  they  should  be 
pleaded.  Hahnemannian  Life  Ins. 
Co.  v.  Beebe,  48  111.  87,  s.  c.,  1 
Withr.  Corp.  Cas.  420. 

It  is  not  necessary  for  a  plaintiff 
corporation,  in  bringing  a  suit,  to 
allege  that  it  is  a  corporation. 
Leader  Printing  Co.  v.  Lowry,  9 
Okla.  89,  59  Pac.  Rep.  242. 

A  corporation  may  bring  suit 
in  its  own  name  and  if  it  fails  to 
describe  its  legal  entity,  it  may 
amend  by  alleging  that  it  is  a  cor- 
poration. Collins  v.  Armour  Fer- 


tilizer Works,  18  Ga.  App.  533,  89 
S.  E.  Rep.  1054. 

The  point  that  plaintiff  is  not  a 
corporation  should  be  raised  by 
a  special  plea  in  the  nature  of  a 
plea  in  abatement,  before  pleading 
to  the  merits,  otherwise  it  is  waived. 
Leader  Printing  Co.  v.  Lowry,  9 
'  Okla.  89,  59  Pac.  Rep.  242. 

Where  the  corporation  is  created 
by  a  public  act  the  mere  designa- 
tion of  it  by  its  corporate  name  is  a 
sufficient  allegation  of  corporate 
existence.  Parker  v.  Carolina  Sav. 
Bank,  53  S.  C.  583,  31  S.  E.  Rep. 
673,  69  Am.  St.  Rep.  888. 

The  prefixing  of  the  word  "the" 
and  the  use  of  the  word  "club" 
in  a  corporate  name  distinguished 
it  from  a  natural  person,  firm  or 
copartnership.  In  re  Nyack  Coun- 
try Club,  166  N.  Y.  Supp.  611. 

«  Code  of  Civil  Procedure,  §  1775. 

AH  that  Code  of  Civil  Procedure, 
§  1775  requires  is  an  allegation  that 
plaintiff  is  a  corporation  organized 
under  the  laws  of  a  certain  State  or 
country.  Sun,  etc.,  Bldg.,  etc., 
Ass'n  v.  Buck,  36  N.  Y.  App.  Div. 
637,  55  N.  Y.  Supp.  262. 

A  complaint  alleging  that  plain- 
tiff is  "a  Pennsylvania  corpora- 
tion "  sufficiently  states  that  it  is  a 
foreign  corporation  and  names  ths 


76 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


At  common  law,  proof  of  corporate  existence  was  essential 
under  the  general  issue,47  as  well  as  under  a  special  plea  of 
"nul  tiel  corporation."  But  the  New  York  statute  provides 
that  in  an  action  brought  by  or  against  a  corporation,  the 
plaintiff  need  not  prove  upon  the  trial  the  existence  of  the 
corporation,  unless  the  answer  is  verified  and  contains  an 
affirmative  allegation  that  the  plaintiff  or  the  defendant,  as 
the  case  may  be,  is  not  a  corporation.48 


State  where  it  was  organized. 
Roberts  v.  Pioneer  Iron  Works,  125 
N.  Y.  App.  Div.  207,  109  N.  Y. 
Supp.  230. 

47  Jackson  v.  Plumbe,  8  Johns. 
295,  and  cases  cited;  Williams  v. 
Bank  of  Michigan,  7  Wend.  (N.  Y.) 
539,  aff'g  5  Id.  478. 

48  Code     of     Civil     Procedure, 
§  1776. 

A  plea  of  nul  tiel  corporation 
imposes  upon  the  plaintiff  the  bur- 
den of  proving  its  corporate  exist- 
ence; and  as  such  plea  goes  to  the 
merits  and  does  not  suggest  a  bet- 
ter wtit,  but  tends  to  defeat  and 
not  to  postpone  the  action,  it  is  a 
plea  in  bar  rather  than  a  plea  in 
abatement.  Law  Guarantee  & 
Trust  Soc.  v.  Hogue,  37  Ore.  544, 
62  Pac.  Rep.  380,  63  Pac.  Rep. 
690. 

Where  there  is  an  allegation  of 
incorporation,  a  general  denial 
will  not  present  the  issue.  The  de- 
nial must  be  specific  in  the  nature 
of  a  plea  in  abatement,  in  order  to 
present  the  defense.  Davis  v.  Ne- 
brask  Bank,  51  Neb.  401,  70  N. 
W.  Rep.  963. 

In  order  to  put  plaintiff  to  proof 
of  incorporation  the  answer  must 
affirmatively  allege  that  plaintiff 
is  not  a  corporation.  Erie  &  J.  R. 


Co.  v.  Brown,  57  N.  Y.  Misc.  164, 
107  N.  Y.  Supp.  983. 

The  allegation  of  plaintiff's  in- 
corporation is  as  good  as  evidence, 
in  the  absence  of  a  denial  of  such 
allegation.  Fox  v.  Knickerbocker 
Engraving  Co.,  140  Fed.  Rep.  714; 
Simon  v.  Calfee,  80  Ark.  65,  95  S. 
W.  Rep.  1011;  Charleston  Live 
Stock  Co.  v.  Collins,  79  S.  C.  383, 
60  S.  E.  Rep.  944. 

Where  the  name  of  a  party  is 
stated  in  such  words  in  a  pleading 
as  to  imply  a  corporation,  the  party 
will  be  presumed  to  be  a  corpora- 
tion until  the  fact  is  put  in  issue 
by  a  denial.  Ohio  Oil  Co.  v.  Beta- 
more,  165  Ind.  243,  73  N.  E.  Rep. 
906. 

An  answer  which  "specifically 
denies  each  and  every  other  alle- 
gation of  the  complaint"  is  not 
sufficient  to  put  plaintiff  to  proof 
of  allegation  of  incorporation. 
Pittsburg  Plate  Glass  Co.  v.  Mon- 
roe, 79  S.  C.  564,  61  S.  E.  Rep. 
92. 

The  issue  of  incorporation  will 
be  raised  by  a  specific  denial  of 
knowledge  or  information  suffi- 
cient to  form  a  belief.  Milwaukee 
Gold  Extraction  Co.  v.  Gordon, 
37  Mont.  209,  95  Pac.  Rep. 
995. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


77 


2.  Strict  Proof  not  Usually  Required. 

When  evidence  of  incorporation  becomes  necessary,  it  is 
enough,  in  ordinary  actions,  to  prove  the  existence  of  a  cor- 
poration de  facto,  without  proving  formal  compliance  with 
the  requirements  of  the  law  or  charter  in  respect  to  the  per- 
fecting of  the  organization.  In  other  words,  it  is  enough  to 
prove  existence  under  color  of  law,  without  proving  a  regular 
origin  of  existence  in  conformity  to  law.  If  the  company 
had,  in  form,  a  charter  authorizing  it  to  act  as  a  body  cor- 
porate, or  acted  under  color  of  a  general  law  sanctioning  its 
purposes,  and  if  it  was,  in  fact,  hi  the  exercise  of  corporate 
powers  at  the  time  of  the  dealings  in  question,  and  at  the 
time  of  litigation,  then  it  was  and  is,  as  to  all  except  the 
State,  a  corporation  de  facto.43  This  rule  applies  alike  to 


49  Jones  v.  Dana,  24  Barb.  399, 
ALLEN,  J. 

Where  there  is  a  law  authorizing 
incorporation  and  an  attempt  in 
good  faith  to  organize,  the  corpo- 
ration exists  de  facto  and  its  legal- 
ity cannot  be  questioned  collater- 
ally by  one  who  deals  with  it  as  a 
corporation.  The  State  alone  can 
attack  it  in  a  direct  proceeding. 

The  introduction  in  evidence  of 
the  charter  and  proof  of  user  suffi- 
ciently proves  a  corporation  de 
facto.  Imperial  Bldg.  Co.  v.  Chi- 
cago Open  Board  of  Trade,  238 
111.  100,  87  N.  E.  Rep.  167. 

A  bank  which  continues  its  busi- 
ness after  its  charter  expires  by 
limitation,  continues  as  a  de  facto 
corporation  and  its  transactions 
will  not  be  declared  invalid  be- 
cause of  its  supposed  legal  non-ex- 
istence. Campbell  v.  Perth  Am- 
boy  Mut.  Ix>an  Homestead,  etc., 
Ass'n,  76  N.  J.  Eq.'  347,  74  Atl. 
Rep.  144. 


To  prove  the  existence  of  a  de 
facto  corporation  it  must  be  shown 
(1)  that  there  is  a  law  of  the  State 
or  territory  where  the  corporation 
existed  authorizing  the  organiza- 
tion of  such  a  corporation;  (2)  that 
a  bona  fide  attempt  was  made  to 
effect  such  organization;  (3)  actual 
user  of  the  corporate  powers,  or 
some  of  them.  Milwaukee  Gold 
Extraction  Co.  v.  Gordon,  37  Mont. 
209,  95  Pac.  Rep.  995. 

To  prove  the  existence  of  a  cor- 
poration it  is  only  necessary  to  in- 
troduce a  properly  certified  copy 
of  its  charter,  and  to  show  a  com- 
pliance by  the  corporation  with 
the  statutory  requirements.  Calor 
Oil  &  Gas  Co.  r.  Franzell,  33  Ky. 
Law  Rep.  98,  109  S.  W.  Rep.  328. 

Where  a  corporation  has  failed 
to  pay  its  license  tax  and  a  forfeit- 
ure of  its  charter  has  been  declared, 
it  ceases  to  be  a  corporation.  The 
title  to  property  formerly  owned 
by  it  rests  in  the  former  directors 


78 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


actions  brought  by  corporations  as  plaintiffs,  whether  upon 
contracts  50  or  against  wrongdoers, 51  and  to  actions  brought 
against  corporations,  whether  upon  contracts  made  or 
wrongs  committed  by  them.52  Upon  plea  of  nul  tiel  cor- 


as  trustees.  Aalwyn's  Law  Insti- 
tute v.  Martin,  173  Cat.  21,  159 
Pac.  Rep.  158. 

50  In  Methodist  Episcopal  Church 
v.  Pickett,  19  N.  Y.  482,  and  Slocum 
v.  Warren,  10  R.  I.  124,  this  rule  is 
laid  down  in  terms  applicable  only 
to  actions  on  contracts  made  by 
the  other  party  with  the  supposed 
corporation;  but  the  reasons  of  the 
rule  (which  are  explained  in  those 
cases,  and  in  Narragansett  Bank 
v.  Atlantic  Silk  Co.,  cited  below), 
are  equally  applicable,  and  in  prac- 
tice the  rule  is  actually  applied,  to 
all  actions  in  the  nature  of  private 
remedies,  with  the  exceptions  indi- 
cated in  paragraph  3. 

Where  plaintiff  executed  a  bond 
to  the  defendant  and  in  it  conclu- 
sively recognized  defendant's  legal 
corporate  existence  and  its  capac- 
ity to  sue,  he  is  estopped  from  de- 
nying those  things.  Spreyne  v. 
Garfield  Lodge,  No.  1,  U.  S.  B.  S., 
117  111.  App.  253. 

Where  it  appears  prima  facie 
that  plaintiff  is  a  corporation  and 
defendant  fails  to  dispute  that  fact 
by  plea  or  otherwise,  no  further 
proof  of  corporate  existence  is  re- 
quired, and  the  plaintiff,  although 
a  foreign  corporation,  will  be  per- 
mitted to  conduct  the  action  even 
if  it  never  complied  with  the  cor- 
poration act  requiring  a  certificate 
to  be  filed  in  the  state.  Macmil- 
lan  Co.  v.  Stewart,  69  N.  J.  L. 


212,  56  Atl.  Rep.  240,  69  N.  J. 
Law,  676,  56  Atl.  Rep.  1132. 

The  execution  and  delivery  of 
an  instrument,  e.  g.,  a  lease,  to  a 
corporation,  as  such,  is  prima  facie 
evidence  of  the  existence  of  the 
corporation,  and  no  proof  is  nec- 
essary until  such  evidence  is  re- 
butted. West  Side  Auction  House 
Co.  v.  Connecticut  Mut.  L.  Ins. 
Co.,  186  111.  156,  57  N.  E.  Rep.  839. 
See  also  Milwaukee  Gold  Extrac- 
tion Co.  v.  Gordon,  37  Mont.  209, 
95  Pac.  Rep.  995. 

Where  plaintiff  corporation  sues 
on  a  promissory  note  and  defend- 
ant in  his  answer  admits  making 
the  note  such  admission  is  prima 
facie  proof  of  plaintiff's  corporate 
existence.  Van  Winckle  GUI,  etc., 
Works  v.  Mathews,  2  Ga.  App. 
249,  58  S.  E.  Rep.  396. 

In  a  court  not  of  record,  where 
pleadings  are  oral,  where  plaintiff's 
witness  swears  to  the  fact  of  cor- 
porate existence,  and  the  other 
side  offers  no  evidence  to  the  con- 
trary, the  proof  of  corporate  exist- 
ence is  conclusive.  Gillin  Printing 
Co.  v.  Traphagen,  36  N.  Y.  Misc. 
774,  74  N.  Y.  Supp.  900. 

51  Searsburgh  Turnpike  Co.  v. 
Cutler,  6  Vt.  315. 

"Narragansett  Bank  v.  Atlan- 
tic Silk  Co.,  3  Mete.  288,  SHAW, 
Ch.  J.  Whatever  the  alleged  cor- 
poration would  have  to  prove  to 
an  action  brought  by  it,  on  an  issue 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  79 

poration  the  burden  of  proving  corporate  existence  is  on 
the  plaintiff,  but  proof  of  its  existence  as  a  corporation  de 
facto  is  sufficient.53 

The  three  elements  of  strict  proof  of  incorporation  are: 
1.  Legislative  sanction;  2.  Existence  under  color  of  such 
sanction;  3.  Regularity  of  origin  conforming  to  the  sanction. 
The  first  may  now  be  generally  supplied,  in  the  case  of  domes- 
tic corporations,  by  the  doctrine  of  judicial  notice,  and,  in 
the  case  of  foreign  corporations,  by  the  statute  book;  the 
second  and  third  are  often  dispensed  with  by  an  estoppel; 
the  third  is  not  required  save  where  the  nature  of  the  action 
demands  strict  proof. 

3.  Exceptional  Cases. 

The  cases  in  which  it  is  necessary  to  give  strict  proof  of 
incorporation,  that  is,  to  prove  not  only  the  being,  but  the 
right  to  be,  are:  1.  Actions  by  the  State  to  ascertain,  or  to 
put  an  end  to  corporate  existence.54  2.  Proceedings  by  a 
private  corporation,  in  the  exercise  of  a  franchise  in  deroga- 
tion of  common  right;  for  instance,  to  divest  title  to  private 
property.55  3.  Proceedings  of  a  penal  character  by  a  private 

of  "no  such  corporation,"  may  be  55See   Searsburg  Turnpike  Co. 

controverted  in  an  action  against  v.  Cutler,  6  Vt.  314.     Contra,  Mat- 

the  supposed  corporation,  for  re-  ter  of  N.  Y.  Elevated  Ry.  Co.,  3 

lief  based  on  the  corresponding  al-  Abb.  New  Cases,  401. 

legation  that  no  such  corporation  Courts  have  no  power  to  dis- 

ever  existed;  but  beyond  this  the  solve  corporations  at  the  instance 

party  contesting  the  claim  of  cor-  of  private  suitors  except  if  and  as 

porate  existence  cannot  go.    Allen,  authorized    by    statute.      In    re 

J.,  Jones  v.  Dana,  24  Barb.  398.  Litchfield  County  Agricultural  Soc- 

53  Cozens  v.  Chicago  Hydraulic  (Conn.),  100  Atl.  356. 

Press  Brick  Co.,  166  111.  213,  46  N.  At   the    end   of   the    term   for 

E.  Rep.  788.  which  it  is  incorporated  a  corpora- 

That  a  corporation  is  a  de  facto  tion  ceases  to  exist  by  virtue  of  the 

corporation  and  the  plaintiff  is  a  expiration   of   that   term   and   no 

de  facto  stockholder  is  enough  to  adjudication  of  a  court  is  necessary 

sustain  an   action.     McMillen  v.  to   terminate   the    corporate    life. 

Lamb,  166  N.  Y.  Supp.  656.  In  re  Friedman  (App,  Div,),  164 

"  Ang.  &  A.,  §  94;  N.  Y.  General  N.  Y.  Supp,  892,, 
Corporation  Law,  §§  130-136. 


80  ACTIONS   BY  AND   AGAINST   CORPORATIONS 

corporation.56  4.  Actions  on  contracts  like  subscriptions 
for  stock,  if  the  very  consideration  is  the  legal  organization 
of  a  corporation  having  a  right  to  existence.57  In  such  cases 
the  inquiry  may  extend  to  the  due  compliance  with  all  the 
requirements  of  the  law;  but  often,  even  in  these  cases,  it  is 
narrowed  or  precluded  by  estoppel  or  admission.  5.  Where 
the  question  is  whether  there  is  corporate  power  to  take  by 
will,  sufficient  regularity  of  origin  to  show  an  attempt  in 
good  faith  to  comply  with  the  law  may  be  required. 

4.  Incorporation  Incidentally  in  Issue. 

If  the  corporation  is  not  a  party,  and  its  existence  is  only 
collaterally  in  question,  as  for  instance,  on  indictment  for 
counterfeiting  bank  notes,  or  hi  an  action  on  a  stockholder's 
contract  for  sale  of  stock  hi  a  reputed  corporation,  where 
fraud  is  not  alleged,  less  proof  suffices  than  hi  actions  by  or 
against  the  corporation;  but,  if  its  existence  is  directly  in 
issue,  even  where  it  is  not  a  party,  as,  for  instance,  where  an 
individual  defends  on  the  ground  that  a  private  corporation 
was  the  real  party  in  interest,  and  liable  in  his  stead,58  the 
rules  stated  in  this  chapter  will  apply.  In  proceedings  to 
enforce  ordinances  of  a  municipal  corporation,  the  illegality 
of  the  corporate  organization  cannot  be  shown  to  defeat  a 
recovery;  hi  such  a  collateral  proceeding,  evidence  that  the 
corporation  is  acting  as  such  is  all  that  is  required.59 

6.  Legislative  Sanction  Necessary. 

By  the  American  law,  evidence  of  mere  user,  however  long 
continued,  is  not  enough  to  prove  the  existence  of  a  private 

M  Commonwealth  v.  U.  S.  Bank,  M  Williams  v.  Sherman,  7  Wend. 

2  Ashm.  349.  109. 

A  corporation  may  be  indicted  When  the  corporate  existence  of 

only  when  the  legislature  has  a  plaintiff  corporation  is  put  in 
specifically  so  provided.  State  v.  '  issue,  the  allegation  in  that  respect 

Terre  Haute  Brewing  Co.   (Ind.),  must  be  proved.    Strang  v.  Oregon- 

115  N.  E.  Rep.,  §  772.  Washington  R.  &  Nav.  Co.,  83 

57  See  Ry.  Co.  v.  Allerton,   18  Ore.  644,  163  Pac.  Rep.  1181. 

Wall.  233.  5»  1  Dill.  Mun.  C.  440,  §  351. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


81 


corporation.60    There  must  be  legislative  sanction,61  usually 
to  be  shown  only  by  the  existence  of  a  charter,62  or  some 


80  Per  SELDEN,  J.,  Methodist 
Episcopal  Church  v.  Pickett  above. 
Especially  if  the  acts  are  such  as  an 
unincorporated  body  might  per- 
form. Greene  v.  Dennis,  6  Conn. 
292.  For  statutory  exception  in  the 
case  of  Plank  Road  Companies,  see 
L.  of  N.  Y.,  1855,  c.  546,  §  1;  Bel- 
fast, etc.,  Plank  Road  Co.  v.  Cham- 
berlain, 32  N.  Y.  651.  That  a 
charter  was  once  granted  to  a 
municipal  corporation  may  be  pre- 
sumed from  very  long  user.  1  Dill. 
M.  C.  168;  Robie  v.  Sedgwick,  35 
Barb.  327. 

In  all  criminal  prosecutions  in- 
volving proof  of  the  legal  existence 
of  a  corporation,  user  shall  be 
prima  facie  evidence  of  such  ex- 
istence. Whiteman  v.  People,  83 
111.  App.  369. 

Proof  of  user  sufficiently  sup- 
ports the  allegation  of  incorporation 
in  an  indictment,  there  being  no 
countervailing  proof.  Waller  v. 
People,  175  111.  221,  51  N.  E.  Rep. 
900. 

61  Such,  for  instance,  as  that  it 
claimed  to  be  and  acted  as  a  town 
with  the  knowledge  and  assent  of 
the  legislature.  Bow  v.  Allenstown, 
34  N.  H.  365,  and  cases  cited;  but 
see  Welch  v.  Ste.  Genevieve,  1  Dill. 
C.  Ct.  136.  But  the  recognition 
must  be  legislative.  Recognition 
by  the  executive  is  not  enough. 
People  v.  Phcenix  Bank,  24  Wend. 
431. 

It  is  prima  facie  proof  that  a  cor- 
poration has  a  legal  existence  where 
a  United  States  patent  introduced 


in  evidence  shows  that  the  govern- 
ment recognized  the  corporation 
by  conveying  to  it  a  patent;  or 
where  it  appears  that  the  legisla- 
ture of  the  state  by  an  act  donated 
lands  to  the  corporation.  Altschul 
v.  Casey,  45  Or.  182,  76  Pac.  Rep. 
1083. 

The  articles  of  incorporation,  un- 
supplemented  by  other  proof,  e.  g,, 
filing  those  articles,  are  inadequate 
to  prove  existence  of  corporation. 
Goodale  Lumber  Co.  v.  Shaw,  41 
Or.  544,  69  Pac.  Rep.  546. 

82  Proof  of  the  destruction  of 
public  records  in  the  same  reposi- 
tory as  the  charter  is  admissible  to 
explain  the  omission  to  produce  a 
charter.  Bow  v.  Allenstown,  34 
N.  H.  351 ;  and,  in  such  a  case,  evi- 
dence of  reputation  and  forty  years' 
user,  may  be  sufficient.  Diliing- 
ham  v.  Snow,  5  Mass.  547. 

The  articles  of  incorporation  of 
the  plaintiff  with  the  filing  marks 
thereon,  are  evidence  of  the  due 
incorporation  of  the  plaintiff  .\Sierra 
Land,  etc.,  Co.  v.  Bricker,  3  Gal. 
App.  190,  85  Pac.  Rep.  665. 

Duly  authenticated  copy  of  ar- 
ticles of  incorporation  is  sufficient 
proof  of  existence  of  corporation. 
Dowagiac  Mfg.  Co.  v.  Higinbotham, 
15  S.  D.  547,  91  N.  W.  Rep. 
330. 

Proof  of  the  statute  whereby  a 
corporation  was  chartered  together 
with  proof  of  the  acts  of  the  rail- 
road commissioners  in  assenting 
to  a  consolidation,  is  proof  of  the 
existence  of  a  corporation.  Com- 


82 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


statute  under  which  the  supposed  corporation  might  law- 
fully be  created;  and  the  better  opinion  is  (although  many  of 
the  cases  fail  to  indicate  the  distinction),  that  the  familiar  rule 
forbidding  one  who  has  dealt  with  a  body  as  incorporated, 
to  question  its  corporate  character,  does  not  apply  to  the 
question  of  legislative  sanction.  The  estoppel  serves  only 
in  place  of  evidence  of  the  existence  and  regularity  of  or- 
ganization, it  does  not  preclude  denying  the  existence  or 
validity  of  a  law  affording  the  necessary  sanction.63  Other- 
wise corporations  could  be  formed  by  contract.  But  a  legis- 
lative recognition  of  the  existence  of  a  corporation — as,  for 
instance,  by  a  statute  even  modifying  its  name — is,  if 
coupled  with  some  evidence  of  user,  or  admission,  conclusive 


monwealth  v.  Carroll,  145  Mass. 
403,  14  N.  E.  Rep.  618. 

The  existence  of  an  agricultural 
society  cannot  be  proved  by  in- 
troducing a  book  entitled  "Records 
of  the  Society"  where  such  book 
contains  no  copy  of  any  legal  war- 
rant giving  it  existence.  Mc- 
Kenney  v.  Bowie,  94  Me.  397,  47 
Atl.  Rep.  918. 

The  purposes  for  which  a  cor- 
poration is  organized  must  be  ascer- 
tained by  reference  to  the  terms 
of  its  charter.  The  Taylor-Critch- 
field  Co.  v.  Sluckart,  275  111.  129, 
113  N.  E.  Rep.  895. 

"  Heaston  v.  Cincinnati  R.  R. 
Co.,  16  Ind.  275.  There  can  be  no 
estoppel  in  the  way  of  ascertaining 
the  existence  of  a  law.  Town  of 
South  Ottawa  v.  Perkins,  94  U.  S. 
267;  Snyder  v.  Studebaker,  19  Ind. 
462.  Compare  Phoenix  Ware- 
housing Co.  v.  Badger,  6  Hun,  293, 
where  the  estoppel  was  extended 
to  the  question  whether  the  cor- 
porate object  was  within  the  scope 
of  the  statute. 


A  stockholder  who  has  partici- 
pated in  the  dividends  of  a  corpo- 
ration cannot  later  question  the 
corporation's  lawful  existence.  Lin- 
coln Park  Chapter  No.  177,  R.  A. 
M.  v.  Swatek,  204  111.  228,  68  N.  E. 
Rep.  429. 

It  is  for  the  State  alone  to  com- 
plain of  any  mis-use  or  non-user 
of  the  powers  conferred  in  the  crea- 
tion of  a  corporation.  Lincoln 
Park  Chapter  No.  177,  R.  A.  M.  v. 
Swatek,  204  111.  228,  68  N.  E.  Rep. 
429. 

The  laws  under  which  a  corpora- 
tion is  created  are  as  much  a  part 
of  its  charter  as  if  actually  written 
into  it  and  made  a  part  of  the 
charter.  In  re  Hanson's  Estate 
(S.  D.),  159  N.  W.  Rep.  399. 

The  general  rule  is  that  persons 
sued  by  a  corporation  in  an  action 
ex  contractu  as  well  as  persons  sued 
by  a  corporation  in  an  action  ex 
deliclo,  are  equally  debarred  from 
setting  up  the  defense  that  the  cor- 
poration was  not  legally  organized, 
which  is  a  question  for  the  State. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


83 


evidence  of  its  existence,  as   against  every  one  but  the 
State.64 

6.  Domestic  Corporation — General  Law  or  Charter. 

The  courts  65  take  judicial  notice,  not  only  of  the  general 
laws  under  which  corporations  are  now  usually  formed,66 


National  Soc.  U.  S.  D.  v.  American 
Surety  Co.,  56  N.  Y.  Misc.  627, 
107  N.  Y.  Supp.  820. 

64  Green's  Brice's  Ultra  V.  21, 
n.  f,  and  cases  cited. 

Where  the  legislature  by  its  acts 
recognizes  the  existence  of  the  cor- 
poration's special  charter,  and  in 
actions  by  the  State  against  the 
corporation  the  validity  of  the 
latter's  charter  is  not  attacked, 
the  State  is  precluded  from  subse- 
quently disputing  the  legality  of 
the  corporation's  existence  in  dis- 
regard of  its  special  charter.  Powers 
v.  Detroit,  etc.,  Railway  Co.,  201 
U.  S.  543,  26  Sup.  Ct.  Rep.  556, 
50  L.  ed.  860;  People  v.  Detroit, 
etc.,  Ry.  Co.,  157  Mich.  144,  121 
N.  W.  Rep.  814. 

Proceedings  for  the  dissolution 
of  a  corporation  because  it  has 
ceased  to  act  under  its  franchise 
are  not  properly  instituted  by  a 
private  individual,  but  must  be 
brought  by  the  State.  Richards  v. 
Cavalry  Club  of  Rhode  Island 
(R.  I.),  101  Atl.  Rep.  222. 

"Including  courts  of  United 
States  held  within  the  State.  Cov- 
ington  Drawbridge  v.  Shepherd, 
20  How.  (U.  S.)  227. 

Where  a  corporation's  charter 
was  amended  by  an  act  of  the  legis- 
lature, and  the  validity  of  such 
act  is  not  in  question,  the  court  will 


take  judicial  notice  of  the  existence 
of  the  corporation.  Parker  v.  Caro- 
lina Savings  Bk.,  53  S.  C.  583, 31  S. 
E.  Rep.  673,  69  Am.  St.  Rep.  888. 

Where  a  certified  list  of  corpora- 
tions organized  under  a  certain 
act  is  published  pursuant  to  such 
act,  the  court  will  take  judicial 
notice  of  the  existence  of  any  cor- 
poration included  in  such  list. 
Coal  Creek  Consol.  Coal  Co.  v. 
East  Term.  Iron  &  Coal  Co.,  105 
Tenn.  563,  59  S.  W.  Rep.  634. 

64  But  not  of  the  organization  of 
the  company  under  it.  Danville, 
etc.,  Co.  v.  State,  16  Ind.  456. 

The  charter  of  a  city  is  a  public 
law  of  which  all  courts  take  judicial 
notice.  Naylor  v.  McColloch,  54 
Ore.  305,  103  Pac.  Rep.  68. 

The  courts  of  Tennessee  cannot 
take  judicial  notice  that  a  corpora- 
tion was  chartered  in  another 
State,  and  that  it  had  not  been 
domesticated  under  the  laws  of 
Tennessee.  Nashville  Trust  Co. 
v.  Weaver,  102  Tenn.  66,  50  S.  W. 
Rep.  763. 

While  the  personal  knowledge 
of  the  court  may  inform  it  of  the 
history  of  the  railroad  lines  oper- 
ated by  defendant,  it  cannot  take 
judicial  notice  of  it;  the  facts  must 
must  appear  in  the  record.  Purdj' 
v.  Erie  R.  Co.,  162  N.  Y.  42,  56 
N.  E.  Rep.  508,  48  L.  R.  A.  669. 


84 


ACTIONS   BY    AND    AGAINST   CORPORATIONS 


but  also  of  the  existence  and  contents  of  special  charters  of 
municipal  corporations.67  They  may  do  so  respecting  other 
public  corporations,  but  the  line  of  distinction  between 
public  and  private  corporations  is  ill-defined,  and,  in  prac- 
tice, a  special  charter,  or  so  much  of  it  as  is  material,  should 
be  put  in  evidence.  It  may  be  read  from  the  volumes  printed 
by  authority  of  the  government,68  or  (as  is  more  convenient 
for  inserting  the  charter  in  the  record  as  an  exhibit),  by 
producing  a  certified  copy.69 

7.  Evidence  of  Authenticity  of  Statute. 

The  presumption  is  that  a  statute  published  by  authority 
of  the  government  was  correctly  passed  in  respect  to  form. 
The  objection  that  the  requisite  forms  were  not  observed— 
e.  g.,  that  three-fifths  were  not  present,  etc., — must  be 
pleaded,  where  the  course  of  pleading  requires  the  statute 
to  be  pleaded,  and  must  be  affirmatively  proved.70  The 


"Lord  v.  City  of  Mobile,  113 
Ala.  360,  21  So.  Rep.  366;  Prell  i». 
McDonald,  7  Kans.  426;  s.  c.,  12 
Am.  Rep.  423,  and  cases  cited;  and 
see  25  Ind.  512;  see  Abb.  Dig. 
Corp.  tit.  Pub.  C.  Priv.  C.;  1 
Whart.  Ev.,  §  294. 

The  court  must  take  judicial 
notice  of  the  acts  affecting  the  in- 
corporation of  the  Chicago  City 
Ry.  Co.  McArdle  v.  Chicago, 
etc.,  Ry.  Co.,  141  111.  App.  59. 

68  Wood  v.  Jefferson  County 
Bank,  9  Cow.  194;  People  v.  Super- 
visors of  Chenango,  8  N.  Y.  317; 
Howell  v.  Ruggles,  5  Id.  444,  N.  Y. 
L.  of  1843,  p.  80,  c.  98,  §  2;  N.  Y. 
Code  of  Civ.  Pro.,  §  932,  or  within 
six  months  after  the  close  of  the 
session  at  which  it  was  passed,  it 
may  be  read  from  a  newspaper  offi- 
cially designated  to  publish  the  laws. 

8r  Duncan  v.  Duboys,  3  Johns. 
Cas.  125. 


The  certificate  of  incorporation 
of  the  plaintiff  being  of  record  in 
the  office  of  the  secretary  of  the 
territory  of  Montana,  the  existence 
of  the  plaintiff  was  property  proved 
by  a  copy  of  said  certificate  certi- 
fied by  the  Secretary  of  State  under 
Montana  Code  Civ.  Pro.,  §  3207. 
Western  Iron  Works  v.  Montana 
Pulp  &  Paper  Co.,  30  Mont.  550, 
77  Pac.  Rep.  413. 

The  introduction  in  evidence  of 
a  properly  certified  copy  of  the 
charter  of  the  plaintiff  corporation, 
which  was  regular  on  its  face,  and 
showed  a  compliance  with  statu- 
tory requirements,  established  the 
existence  of  the  corporation.  Calor 
Oil  &  Gas  Co.  v.  Franzell,  33  Ky. 
Law  Rep.  98,  109  S.  E.  Rep.  328. 
See  Cent.  Dig.,  Vol.  13,  Corpora- 
tions, §§  106-118. 

70  People  r.  Supervisors  of  Che- 
nango, 8  N.  Y.  317. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  85 

court  may,  and  should,71  if  necessary,  look  beyond  the 
printed  statute  book  and  examine  the  original  engrossed  bill 
on  file  in  the  office  of  the  Secretary  of  State,  to  ascertain  if  a 
bill  had  a  constitutional  vote.72  Whenever  the  existence  of  a 
statute,  or  the  time  when  a  statute  took  effect,  or  the  precise 
terms  of  a  statute,  are  in  question,  the  judges  have  a  right, 
unless  a  different  rule  has  been  enacted,  to  resort  to  any 
source  of  information  which,  in  its  nature,  is  capable  of  con- 
veying to  the  judicial  mind  a  clear  and  satisfactory  answer 
to  such  questions;  always  seeking  first  for  that  which,  in  its 
nature,  is  most  appropriate.73  Hence  they  may  look  to 
other  connected  records  to  ascertain  the  date  of  enactment, 
if  no  date  appears  in  the  official  certificate.74  So  they  may 
look  beyond  the  authentication  of  the  act,  to  the  journal  of 
either  branch,  to  see  if  the  bill  passed  by  the  constitutional 
vote.75  But  the  better  opinion  is  that  this  inquiry  for  more 
cogent  evidence  than  the  promulgated  form  of  the  law  can 
go  no  further  than  to  ascertain  the  facts  of  enactment  and 
taking  effect.  If  the  act  is  found  to  have  been  passed  by  a 
constitutional  vote,  the  legislative  journals,  or  other  sources 
of  information,  are  not  competent  to  impeach  it  on  the 
ground  of  irregularity  or  departure  from  parliamentary  usage 
in  the  proceedings  of  the  legislature,76  nor  to  show  that  the 
contents  of  the  act  had  been  changed  by  a  mistake  of  the 
engrossing  clerk.77  For  qualifications  of  these  rules  the  local 
statutes  should  be  consulted.78 

71  But  see  4  Centr.  Law  J.  132.  8  Am.  Rep.  602;  Sherman  v.  Story, 

72Purdy  v.  People,  4  Hill,  384,  30  Cal.  253;  State  ex  rel.  Pangborn 

rev'g  2  Id.  31.  v.  Young,  3  Vroom  (N.  J.)  29. 

73  Gardner  v.   The  Collector,   6  76  People  v.  Devlin,  33  N.  Y.  269; 
Wall.  511.  Elevated  R.  R.  cas.  3  Abb.  New 

74  Id.  509.  Cas.  301,  372,  n. 

75  Osburn  v.  Staley,  5  W.  Va.  85,  77  Mayor,   etc.,  of  Annapolis  v. 
s.  c.,  13  Am.  Rep.  640,  and  cases  Harwood,  32  Md.  471;  s.  c.,  3  Am. 
cited;  Skinner  v,  Deming,  2  Ind.  Rep.  161. 

558,;    Purdy    v.    People    (above).  "By  the  N.  Y.  law,  the  Secre- 

Contra,  Grob  v.  Cushman,  45  111.  tary  of  State's  certificate  upon  the 

119;  Louisiana  State  Lottery  Co.  original  bill  of  the  date  of  passage 

v.  Richoux,  23  La.  An.  743,  s.  c.,  is  conclusive.     1  R.  S.  157,  §11; 


86 


ACTIONS   BY   AND    AGAINST   CORPORATIONS 


8.  National  Bank. 

The  existence  and  organization  of  a  national  bank  may 
be  proved  by  producing  the  certificate  of  the  comptroller  of 
the  currency,  under  his  hand  and  seal,  reciting  that  it  had 
been  made  to  appear  that  the  bank  had  been  duly  organized, 
and  certifying  that  it  was  duly  authorized  to  commence 
business  (without  producing  the  record  of  organization), 
together  with  testimony  to  user  by  a  witness  cognizant  of 
the  fact  of  their  carrying  on  business.79 

9.  Corporation  of  Sister  State. 

To  prove  the  general  law  of  incorporation,  or  the  charter  of 
a  corporation  of  another  State  or  territory  of  the  Union,  the 
practitioner  may  either  pursue  the  mode  provided  by  the 
law  of  the  forum,  which  usually  permits  the  law 80  of  a  sister 


People  v.  Devlin  (above).  No  bill 
can  be  deemed  passed  by  two- 
thirds  vote  (1  R.  S.  157,  §  3),  nor 
when  three-fifths  were  present  (L. 
1847,  c.  253),  unless  so  certified  by 
the  presiding  officers  of  both  houses; 
but  the  Secretary  of  State's  state- 
ment, in  the  title  of  the  published 
law,  that  it  was  passed  in  either 
way,  is  presumptive  evidence  that 
the  bill  was  certified  by  the  pre- 
siding officers  as  so  passed,  and  his 
omission  to  insert  such  statement 
is  presumptive  evidence  that  it 
was  not  so  passed.  L.  1847  (above) ; 
L.  1842,  c.  306,  §  3;  and  by  L.  1837, 
c.  140,  certified  copies  of  petitions 
and  papers  presented  to  the  legis- 
lature, are  prima  facie  evidence. 

"  Merchants'  Bank  v.  Glendon 
Co.,  120  Mass.  97;  National  Bank 
of  Commerce  of  Tacoma  v.  Galland, 
14  Wash.  502,  45  Pac.  Rep.  35.  A 
certificate  signed  by  the  Deputy 
Comptroller  of  the  Currency  as 


"acting  Comptroller  of  the  Cur- 
rency," is  a  sufficient  certificate 
by  the  Comptroller  of  the  Cur- 
rency within  the  requirements  of 
Rev.  Stat.,  §  5154,  U.  S.  Keyser 
v.  Hitz,  133  U.  S.  138.  An  assign- 
ment of  national  bank  stock  ab- 
solute in  form  may  be  shown 
aliunde  to  have  been  taken  and 
held  as  collateral  security.  Wil- 
liams v.  American  Nat.  Bank  of 
Ark.  City,  56  U.  S.  App.  316,  85 
Fed.  Rep.  376;  Riley  v.  Hampshire 
Co.  Nat.  Bank,  164  Mass.  482,  41 
N.  E.  Rep.  679. 

80  Persse  &  Brooks  Paper  Works 
v.  Willett,  1  Robt.  131;  s.  c.,  19 
Abb.  Pr.  416;  Barrett  v.  Mead,  10 
Allen,  339;  Paine  v.  Lake  Erie,  etc., 
Co.,  31  Ind.  310, 354;  s.  c.,  1  Withr. 
Corp.  Gas.  386,  408. 

"  There  is  no  common-law  rule  in 
respect  to  the  granting  of  charters 
to  private  business  corporations; 
in  this  country  they  are  generally 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


87 


State  or  territory  to  be  proved  by  producing  a  book  or 
publication,  purporting  or  proved  to  have  been  published  by 
its  authority,  or  proved  to  be  commonly  admitted  as  evi- 
dence of  the  existing  law,  hi  the  tribunals  thereof  (and  such 
evidence  may  be  admitted  on  general  principles  without  an 
enabling  statute); 81  or  he  may  pursue  the  mode  prescribed 


granted  either  by  special  acts  of 
the  lawmaking  power  or  obtained 
under  general  statutes  regulating 
the  subject.  In  these  circum- 
stances, no  presumption  can  be 
indulged  as  to  what  the  law  of 
Illinois  is,  hi  regard  to  the  issuance 
of  certificates  of  incorporation, 
or  what  officer  of  that  State  is  au- 
thorized to  issue  such  certificates, 
or  who  is  the  proper  custodian  of 
them.  Plaintiff  alleged  that  it 
was  incorporated  under  the  laws  of 
Illinois  and  defendant  denied  its 
incorporation  under  oath.  The 
fact  that  the  plaintiff  was  incor- 
porated was  thus  squarely  put  in 
issue  and  it  devolved  upon  plain- 
tiff to  show  some  affirmative  evi- 
dence that  it  was  incorporated, 
as  alleged.  The  existence  of  the 
laws  of  Illinois,  like  any  other 
question  of  fact,  was  a  proper  sub- 
ject of  proof."  Florsheim  &  Co. 
v.  Fry,  109  Mo.  App.  487,  84  S.  W. 
Rep.  1023. 

Books  printed  and  published 
under  authority  of  a  sister  State 
purporting  to  contain  statutes  of 
such  State  are  admissible  in  Oregon 
as  evidence  of  statutes  relating  to 
powers  of  private  corporations. 
Hills  Ann.  Laws  Ore.,  §  725;  State 
v.  Savage,  36  Ore.  191,  60  Pac. 
Rep.  610,  61  Pac.  Rep.  1128. 

Existence  of  a  bank  is  proved  by 


putting  in  evidence  a  certified  copy 
of  its  charter  signed  by  the  auditor 
of  Illinois,  and  certified  by  the 
Recorder  of  Deeds  of  Chicago, 
supplemented  by  the  deposition 
of  the  cashier  of  the  bank  as  to  its 
doing  business  under  said  charter. 
State  Bank  v.  Carr,  130  N.  C.  479, 
41  S.  E.  Rep.  876. 

81  See  People  v.  Calder,  30  Mich. 
85,  and  cases  cited.  But  a  statute 
book  of  another  State,  not  pur- 
porting nor  proved  to  be  published 
by  authority,  nor  proved  to  be 
commonly  admitted  and  read  as 
evidence  in  the  courts  of  that 
State,  is  not  admissible.  Matter 
of  Belt,  1  Park.  Cr.  169. 

If  a  corporation  was  created 
under  a  foreign  statute,  the  statute 
must  be  proved  as  a  fact,  in  order 
to  prove  existence  of  the  corpora- 
tion. Law  Guarantee,  etc.,  So- 
ciety v.  Hogue,  37  Ore.  544,  62 
Pac"  Rep.  380,  63  Pac.  Rep.  690. 

A  book  entitled  "Law  of  Min- 
nesota" setting  forth  on  the  page 
opposite  the  title  page  an  act  of  the 
legislature  of  Minnesota  authoriz- 
ing its  publication,  will  be  received 
in  evidence  in  Wisconsin  as  pur- 
porting to  be  published  with  au-, 
thority  as  required  by  §  4136, 
Wise.  Stats.  1898.  Hollister  v. 
McCord,  111  Wise.  538,  87  N.  W. 
Rep.  475. 


88 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


by  the  act  of  Congress,82  and  produce  a  copy  certified  to  by 
the  Secretary  of  such  State,  under  the  seal  of  the  State; 83 
and  in  strictness  a  copy  under  the  seal  of  the  State  whose 
law  it  is,  is  competent  in  the  courts  of  another  State 84  and  in 
the  courts  of  the  United  States,85  without  any  certificate  that 
it  is  a  opy,  and  without  proof  of  the  seal,  or  of  the  official 
character  of  the  secretary.86  Or  in  the  case  of  a  special 
charter,  he  may  produce  a  copy,  with  proof  by  a  witness 
who  has  examined  and  compared  the  copy  with  the  original 
in  its  proper  place  of  custody; 87  and  if  proof  by  an  authen- 
ticated copy  fails,  from  a  defect  in  the  authentication,  he 
may  fall  back  upon  this  mode.88  Proof  of  the  statute  under 
which  the  corporation  is  organized,  together  with  proof 
of  its  certificate  of  incorporation  issued  in  pursuance  thereof 


«  U.  S.  R.  S.  170,  §  905. 

"  Grant  t;.  Henry  Clay  Co.,  80 
Pa.  St.  208;  Barcello  v.  Hapgood, 
118  N.  C.  712,  24  S.  E.  Rep. 
124. 

Existence  of  corporation  proved 
in  Oregon  by  copy  of  articles  of 
incorporation  certified  by  Secre- 
tary of  State  of  State  of  Nebraska. 
State  v.  Savage,  36  Ore.  191,  60 
Pac.  Rep.  610,  61  Pac.  Rep.  1128. 

"Coit  v.  Millikin,  1  Den.  376; 
State  v.  Carr,  5  N.  H.  369. 

8S  Id.;  U.  S.  v.  Johns,  1  Wash.  C. 
369. 

88  See  Dorsey  Harvester  Rake 
Co.  v.  Marsh,  6  Fish.  Pat,  Cas.  387. 
In  the  absence  of  evidence  to  the 
contrary  the  letters  patent  issued 
by  the  executive  of  another  State, 
reciting  the  passage  of  the  charter, 
and  certifying  the  performance  of 
its  conditions,  have  been  held  suf- 
ficient evidence  of  the  existence  of 
a  charter.  Wellersburgh,  &c.  Co.  v. 
Young,  12  Md.  476.  The  seal  is 


judicially  noticed;  but  if  it  is  not 
a  common-law  seal,  be  prepared  to 
prove  the  foreign  law  as  to  seal. 
Courts  requiring  a  common-law 
seal  have  refused  to  take  notice 
of  foreign  statutes  allowing  public 
seals  to  be  a  mere  impression  on 
paper.  Coit  v.  Millikin,  1  Den. 
376. 

87  For  objections  which  may  per- 
haps be  raised,   unless  there  are 
two  witnesses,  one  of  whom  has 
read  one,  while  the  other  read  the 
other,    etc.,   see    1    Whart.    Ev., 
§94. 

88  Soc.  for  Prop,  of  the  Gospel  v. 
Young,  2  N.  H.  312.    The  testi- 
mony of  an  attorney  at  law  of  a 
sister  State  is  not  legal  evidence 
of  the  statute  law  of  that  State 
where  it  affects  the  merits  of  the 
case;  but  the  statute  being  proved, 
an  attorney  may  testify  as  to  its 
interpretation  by  the  law  of  the 
State.  1  Greenl.  Ev.,  13th  ed.  535, 
§  486,  etc.,  and  cases  cited. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


89 


is  sufficient  to  establish  its  existence  as  a  corporation  de 

facto.89 

I 

10.  Corporation  of  Foreign  State. 

In  the  case  of  a  corporation  of  a  foreign  nation  or  coun- 
try an  exemplified  copy  may  be  produced,  certified  in  the 
manner  prescribed  by  the  law  of  the  forum; M  or  the  statute 
or  charter  may  be  read  from  the  officially  promulgated  publi- 
cation of  the  laws  or  edicts  of  the  foreign  State  containing  the 
charter; 91  or  a  copy  may  be  proved  by  a  witness  as  stated 
in  the  last  paragraph.92 

11.  Modes  of  Proving  De  Facto  Existence. 

Legislative  sanction  having  been  shown,  there  are  four 
principal  ways  in  which  the  practical  existence  of  the  corpora- 
tion on  that  foundation  is  shown:  1.  By  evidence  of  the 
formal  acceptance  of  the  charter,  or  the  organization  of  the 


89Cozzens  v.  Chicago  Hydraulic 
Press  Brick  Co.,  166  111.  213,  46 
N.  E.  Rep.  788. 

*>N.  Y.  Code  of  Civ.  Pro., 
§§  956, etc. 

A  foreign  bank,  created  under 
the  laws  of  Great  Britain  can 
prove  its  existence  by  introducing 
in  evidence  a  certified  copy  of  its 
"  certificate  of  designation  of  agent " 
filed  in  the  office  of  the  Secretary 
of  State.  See  Cal.  Stats.  1871- 
1872,  p.  826;  Cal.  Stats.  1899,  p. 
Ill;  Anglo-Californian  Bank  v. 
Field,  146  Cal.  644,  80  Pac.  Rep. 
1080. 

A  law  of  England  permitting  an 
unincorporated  association  to  re- 
ceive a  charitable  bequest,  cannot 
be  proved  in  New  York  by  a  letter, 
nor  by  a  declaration  made  under 
the  laws  of  Great  Britain  and  Ire- 
land providing  for  the  taking  of 


proof  to  be  used  in  the  colonies  of 
that  nation,  as  neither  complies 
in  any  way  with  the  laws  of  New 
York  so  as  to  permit  it  to  be  read 
in  evidence.  Pratt  v.  Roman 
Catholic  Orphan  Asylum,  20  N.  Y. 
App.  Div.  352,  46  N.  Y.  Supp. 
1035;  affirmed  in  166  N.  Y.  593, 
59  N.E.  Rep.  1120. 

w  N.  Y.  Code  of  Civ.  Pro.,  §  942. 
A  sufficient  foundation  for  the  in- 
troduction of  a  volume  in  proof 
of  the  laws  of  a  foreign  country  is 
laid  by  the  testimony  of  a  banister 
and  solicitor  of  such  country  that 
it  is  a  volume  of  the  statutes  com- 
monly admitted  and  used  as  evi- 
dence in  the  courts  of  his  country. 
Dawson  v.  Peterson,  110  Mich.  431, 
68  N.  W.  Rep.  246. 

92  National  Bank  v.  De  Bernales, 
1  Car.  &  P.  569. 


90 


ACTIONS   BY  AND   AGAINST  CORPORATIONS 


incorporators  under  the  statute.  2.  By  evidence  that  the 
executive  officers  of  the  State  have  authorized  the  company 
to  proceed  with  corporate  business,  upon  the  assumption 
that  they  were  duly  organized  and  entitled  to  act.  3.  By 
evidence  that  they  have  actually  proceeded  to  exercise  cor- 
porate franchises.  4.  By  evidence  that  the  very  dealings 
between  them  and  the  adverse  party,  which  gave  rise  to  the 
action,  were  had  on  the  basis  of  a  supposed  incorporation, 
and  amount  to  an  admission  which  ought  to  conclude  the 
question. 

It  is  best  to  be  prepared  with  some  evidence  both  of  or- 
ganization and  of  user,  but  the  requisite  cogency  of  proof, 
and  the  question  how  far  proof  of  either  of  these  facts  is 
enough  without  the  others,  depends  on  some  considerations 
which  have  given  rise  to  much  apparent  diversity  in  re- 
ported cases,93  and  attention  to  which  is  necessary  to  guide 


"  Soon  after  the  introduction  of 
the  method  of  incorporation  by 
general  law,  moreover,  the  courts 
relaxed  the  stricter  rules  of  prov- 
ing regular  incorporation,  which 
were  often  formerly  applied. 

"To  constitute  a  de  facto  cor- 
poration, there  must  be  either  a 
charter  or  a  law  authorizing  the 
creation  of  such  a  corporation, 
with  an  attempt  hi  good  faith 
to  comply  with  its  terms,  and  also 
a  user,  or  attempt  to  exercise  cor- 
porate powers  under  it."  Fisher  v. 
Pioneer  Const.  Co.  (Colo.),  163 
Pac.  Rep.  851. 

It  is  essential  to  the  existence  of 
a  de  facto  corporation  that  there 
be:  (1)  A  valid  law  under  which  a 
corporation  with  the  powers  as- 
sumed might  be  incorporated.  (2) 
A  bona  fide  attempt  to  organize  a 
corporation  under  such  law.  (3) 
An  actual  exercise  of  corporate 


power.  Farmers'  Mutual  v.  Reser, 
43  Ind.  App.  634,  88  N.  E.  Rep. 
349. 

A  de  facto  corporation  exists 
when  there  is  a  charter  or  a  stat- 
ute under  which  the  corporation 
might  have  done  business,  an  at- 
tempt to  organize  under  it,  and 
actual  user  of  some  of  the  corpo- 
rate powers.  State  v.  Savage,  36 
Ore.  191,  60  Pac.  Rep.  610,  61 
Pac.  Rep.  1128.  See  also  Thomp- 
son on  Corporations,  §  8207. 

It  is  not  necessary  to  prove  ex- 
istence of  a  corporation  by  a  cer- 
tified copy  of  its  articles  of  incor- 
poration. Proof  of  the  de  facto 
existence  of  a  corporation  can  be 
given  by  any  one  who  has  knowl- 
edge of  such  existence,  or  even  by 
general  reputation.  State  v.  Pit- 
tarn,  32  Wash.  137,  72  Pac.  Rep. 
1042. 

A  bank  cannot  prove  its  cor- 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


91 


in  the  application  of  established  principles.  1.  If  the  record 
of  the  organization  is  put  in  evidence,  in  proportion  as  it  is 
full  and  regular,  the  necessity  of  proving  user  is  reduced. 
2.  He  who  has  participated  in  acts  of  user  must  yield  to 
much  slighter  evidence  of  organization  than  he  who  is  a 
stranger  to  the  corporation.  3.  He  who  has  participated 
in  the  steps  of  organization  cannot  usually  avoid  responsi- 
bility by  objecting  to  the  regularity  of  those  steps,  and  must 
yield  to  slighter  evidence  of  user  than  a  stranger.  4.  He 
who  has  received  and  enjoyed  a  consideration  from  the 
company  cannot  require  further  proof  of  its  corporate 
power  to  contract,  or  to  require  him  to  respond.  5.  One 
who  has  in  any  way  dealt  with  the  company  as  a  corpora- 
tion is  taken  to  have  admitted  its  existence,  and  this 
admission,  though  alone  slight  evidence,  comes  in  aid 
of  other  proof.  6.  A  mere  trespasser,  claiming  no 
title,  cannot  require  evidence  of  regular  organiza- 
tion.94 


porate  existence  by  parol  testimony 
of  its  teller,  although  such  testi- 
mony may  be  competent  to  prove 
that  the  bank  was  a  de  facto  cor- 
poration. People  v.  Dole,  122 
Cal.  486,  55  Pac.  Rep.  581,  68 
Am.  St.  Rep.  50. 

Evidence  that  a  corporation 
has  attempted  to  do  the  business 
which  it  was  authorized  by  its 
charter  to  do,  establishes  at  least 
that  it  is  a  corporation  de  facto. 
Leavengood  v.  McGee,  50  Ore. 
233,  91  Pac.  Rep.  453,  12  Cent. 
Dig.  Corps..  §  70. 

94  But  this  consideration  does  not 
apply  in  ejectment  by  a  corpora- 
tion, so  as  to  make  an  exception 
to  the  rule  that  the  plaintiff  must 
recover  on  the  strength  of  his  own 
title.  Goulding  v.  Clark,  34  N.  H. 


148.  It  is  the  varying  effect  of 
such  considerations  as  these  which 
explains  the  want  of  any  well- 
defined  line  as  to  the  requisite 
cogency  of  proof  of  user  referred  to 
in  De  Witt  v.  Hastings,  40  Super. 
Ct.  (J.  &  S.)  463. 

A  corporation  de  facto  may  le- 
gally do  and  perform  every  act  and 
thing  which  it  could  do  or  perform 
were  it  a  de  jure  corporation.  As 
to  all  the  world  except  the  State 
from  which  it  receives  its  power  it 
occupies  the  same  position,  as 
though  in  all  respects  valid,  and 
even  against  the  State,  except  in 
direct  proceedings,  its  acts  are  to 
be  treated  as  efficacious.  Fisher 
v.  Pioneer  Const.  Co.  (Colo.),  163 
Pac.  Rep.  851. 


92 


ACTIONS   BY   AND    AGAINST    CORPORATIONS 


12.  Acceptance  of  Charter. 

Acceptance  of  a  special  charter  may  be  proved  by  pro- 
ducing the  corporate  minutes,95  duly  authenticated,96  con- 
taining a  vote  of  acceptance;  and  the  notice  of  the  first 
meeting  need  not  be  proved  in  the  first  instance,  but  may  be 
presumed  after  a  lapse  of  time,97  or  after  user.98  Or  the 
acceptance  may  be  shown  by  indirect  evidence,  such  as 
official  notice  of  acceptance  given  to  the  State  officers,99 
or  a  notice  calling  a  meeting  to  organize,  signed  by  the  de- 
fendant as  a  corporator.1  In  general,  evidence  that  the  body 
in  its  organic  capacity  (as  distinguished  from  the  individual 
conduct  of  the  corporators),  acted  under  the  charter,  is 
sufficient  evidence  of  acceptance,  unless  the  charter  pre- 
scribes a  different  method.2  Any  unequivocal  or  decisive 
corporate  act 3  is  competent  evidence  of  acceptance.4  And 


96  Middlesex      Husbandmen     v. 
Davis,  3  Mete.  133. 

A  legal  organization  may  be  in- 
ferred from  the  grant  of  a  charter 
and  the  performance  of  corporate 
acts,  without  production  of  a 
record  of  the  corporation's  first 
meeting.  Sampson  v.  Bowdoin- 
ham  Steam  Mill.  Corp.,  36  Me. 
78.  But  the  mere  production  of 
the  "Records  of  the  Society" 
will  not  prove  the  corporation's 
existence.  McKenney  v.  Bowie, 
94  Me.  397,  47  Atl.  Rep.  918. 

99  See  paragraphs  56-59,  below. 

97  Grays    v.    Turnpike    Co.,    4 
Rand.  578. 

"The  State  in  which  a  corpora- 
tion is  organized  determines  the 
citizenship,  whether  it  has  offices 
and  transacts  business  in  the  State 
in  which  the  suit  is  sought  to  be 
brought  or  not."  Martin  v.  Mat- 
son  Nav.  Co.,  239  Fed.  Rep.  188. 


08  Middlesex  Husbandmen  v. 
Davis,  3  Mete.  133. 

Under  §486,  c.  38,  111.  Crim. 
Code,  user  is  prima  facie  evidence 
of  the  legal  existence  of  a  corpora- 
tion. Waller  v.  People,  175  111. 
221,  51  N.  E.  Rep.  900.  See  also 
Whiteman  v.  People,  83  111.  App. 
369;  Kincaid  v.  People,  139  111. 
213,  28  N.  E.  Rep.  1060. 

One  who  deals  with  a  corpora- 
tion as  existing  de  facto  is  estopped 
to  deny,  as  against  it,  that  it  has 
been  legally  organized .  Lincoln  Park 
Chapter  No.  177  R.  A.  M.  v.  Swatek, 
204  111.  228,  68  N.  E.  Rep.  429. 

99  Philadelphia  Bank  v.  Lambeth, 
4  Rob.  (La.)  463. 

1  Gleaves  v.  Brick  Church  Turn- 
pike Co.,  1  Sneed,  491. 

2  Bangor,etc.,R.  R.  Co.  v.  Smith, 
47  Me.  34;  Taylor  v.  Commrs.  of 
Newberne,  2  Jones  Eq.  141. 

3  Thus    acceptance    of    an    act 


4  Abb.  Dig.  Corp.  147. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  93 

acceptance  may  be  presumed  from  the  fact  that  the  cor- 
porators applied  for  the  charter,5  unless  it  appears  that  no 
proceedings  were  ever  taken  under  it.6  The  rule  requiring 
some  evidence  of  the  acceptance  of  a  charter  does  not  apply 
to  municipal  corporations,7  nor  to  any  charters  which  are  so 
expresse  as  to  take  effect  in  creating  the  body  corporate 
independently  of  any  acts  on  the  part  of  the  corporators; 8 
but  if  a  charter  of  even  a  municipal  corporation  be  made 
expressly  to  depend  on  acceptance,  there  must,  when  in- 
corporation is  properly  in  issue,  be  some  evidence  of  ac- 
ceptance. 9  Acceptance  may  be  disproved  by  evidence  of  pro- 
ceedings of  the  body  declining  the  charter,  and  resisting  a  quo 
warranto  on  the  ground  that  they  had  never  accepted  it.10 

13.  Organization  under  General  Law. 

If  the  legislative  sanction  relied  on  is  a  general  law,  the 
existence  of  the  corporation  under  it  may  be  proved,  unless 
the  law  otherwise  provides,  by  producing  the  certificate  of 
organization  which  the  law  required  to  be  filed,11  with  proof 

allowing  a  resurvey  and  alteration  7Gorham  v.  Springfield,  21  Me. 

of  route,  is  not  proved  by  evidence  58;  Berlin  v.  Gorham,  34  N.  H. 

of    resurvey,    without    alteration.  266;    Mining,   etc.,  Co.  v.  Wind- 

Pingry  v.  Washburn,  1  Aik.  264.  ham  Co.  Bk.,  44  Vt.  497. 

B  Middlesex,  etc.,  Soc.  v.  Davis,  3  8  Some  authorities  treat  the  ques- 

Metc.   133;  State  v.  Dawson,  22  tion  as  if  it  depended  on  whether 

Ind.  272.  the  act  was  to  take  effect  immedi- 

6  Newton  v.  Carberry,  5  Cranch  ately  or  not;  but  the  true  test  is, 

C.  Ct.  632.  Is  its   language  alone  enough   to 

Where  an  institution  attempts  constitute  the  body  a  corporation 
to  incorporate,  and  thereafter  per-  (either  immediately  or  at  a  sub- 
forms  no   corporate   acts  of  any  sequent  day),  or  is  it  such  as  to 
character,  holds  no  meetings,  elects  require  the  performance  of  a  con- 
no  officers,  adopts  no  by-laws  or  dition  to  effect  the  creation? 
seal,  issues  no  certificates,  and  is  9  See  City  of  Paterson  v.  Society, 
managed  after  as  it  had  been  be-  4  Zabr.  385. 
fore  the  attempt  to  incorporate,  "Thompson  v.   Harlem   R.   R. 
there  is  no  corporation  de  facto.  Co.,  3  Sandf.  Ch.  625. 
Wall  v.  Mines,  130  Cal.  27,  62  Pac.  »  Chamberlin       v.       Huguenot 
Rep.  386.  Manuf.  Co.,  118  Mass.  532;  Forth 


94 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


of  its  filing.12  Where  strict  proof  is  not  required,  parol  evi- 
dence of  filing  has  been  received  in  lieu  of  official  certificate.13 
The  statutes  now  in  force  usually  make  the  record  of  the 
certificate,  or  a  certified  copy,  evidence  equally  with  the 
original;  but  in  the  absence  of  such  a  provision  the  original  is 
the  best  evidence,14  but  a  certified  copy  is  admissible  against 
the  company,  if,  on  notice,  they  fail  to  produce  the  original.15 


v.  U.  S.  Wind  Engine,  etc.,  Co.,  48 
111.  451,  s.  c.,  1  Withr.  Corp.  Gas. 
437. 

The  articles  of  incorporation 
with  the  filing  marks  thereon  are 
evidence  of  due  incorporation. 
Sierra  Land  &  Cattle  Co.  v.  Bricker, 
3  Cal.  App.  190,  85  Pac.  Rep.  665. 

12  Meriden  Tool  Co.  v.  Morgan,  1 
Abb.  New  Cas.  125.  The  duplicate 
filed  in  the  Secretary  of  State's 
office  need  not  be  proved  where 
strict  proof  is  not  required.  Id.; 
s.  P.,  25  N.  Y.  574,  14  Cal.  424. 
Proof  of  filing  after  suit  brought 
has  been  held  enough  in  an  action 
on  a  contract  with  the  corporation. 
Augur,  etc.,  Co.  v.  Whittier,  117 
Mass.  451;  and  see  20  N.  Y.  157. 
Otherwise  in  an  action  to  enforce 
an  assessment  on  lands.  New  Eel 
River  Draining  Assoc.  v.  Durbin, 
30  Ind.  173,  s.  c.,  1  Withr.  Corp. 
Cas.  353.  As  to  the  cases  in  which 
failure  to  prove  filing  may  be  fatal, 
see  Hawes  v.  Anglo-Saxon  Petro- 
leum Co.,  101  Mass.  385,  and  cases 
cited.  In  what  case  the  certificate 
is  conclusive,  see  Priest  v.  Essex 
Hat  Co.,  115  Id.  380.  For  an 
opinion  insisting  on  the  proof  of 
performance  of  the  statute  condi- 
tions, in  case  of  organization  under 
a  general  law,  see  Mokelumne, 
etc.,  Co.  v.  Woodbury,  14  Cal.  424. 


The  articles  of  incorporation 
filed  with  the  county  clerk  or  Secre- 
tary of  State  are  evidence  of  the 
existence  of  the  corporation.  Good- 
ale  Lumber  Co.  v.  Shaw,  41  Ore. 
544,  69  Pac.  Rep.  546. 

13  Miller  v.  Wild  Cat,  etc.,  Co., 
52  Ind.  51. 

14  Jackson  v.    Leggett,  7  Wend. 
377;  Evans  v.  Southern,  etc.,  Co., 
18  Ind.  101. 

Certified  copies  of  articles  are 
proof  of  the  existence  of  the  cor- 
poration. Goodale  Lumber  Co. 
v.  Shaw,  41  Ore.  544,  69  Pac.  Rep. 
546. 

Duly  authenticated  copy  of  ar- 
ticles of  incorporation  with  the 
certificates  from  the  Secretary  of 
State  are  evidence  of  the  existence 
of  the  corporation.  Dowagiac 
Mfg.  Co.  v.  Higinbotham,  15  S.  D. 
547,  91  N.  W.  Rep.  330. 

While  the  law  provides  that  cer- 
tified copies  of  articles  of  incor- 
poration shall  be  proof  of  existence 
there  is  no  provision  of  law  ex- 
cluding other  proof  of  the  exist- 
ence of  the  corporation.  Oral  proof 
of  existence  by  one  having  knowl- 
edge is  sufficient  if  not  objected  to. 
State  v.  Pittam,  32  Wash.  137,  72 
Pac.  Rep.  1042. 

15  Chamberlin  v.  Huguenot  Mfg. 
Co.,  118  Mass.  532. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


95 


If  the  statute  requires  filing  a  duplicate  in  another  office,  it 
is  the  better  practice  to  prove  both;  16  but  in  all  the  classes  of 
cases  where  strict  proof  of  incorporation  is  not  requisite, 
evidence  of  the  filing  of  either  is  enough  to  go  to  the  jury, 
whether  hi  favor  of  or  against  the  company,  if  there  is  evi- 
dence either  of  user  or  that  the  defendant  has  admitted  the 
fact  of  organization.17  If  the  certificate  states  all  that  the 
statute  requires  it  to  state,  other  facts,  though  made  by  the 
statute  conditions  precedent  to  its  validity,  may  be  pre- 
sumed.18 In  the  case  of  a  corporation  of  a  sister  State, 
formed  under  its  general  statute,  the  evidence  of  incorpora- 
tion which  such  statute  declares  shall  be  deemed  sufficient  to 
prove  the  fact  of  such  incorporation,  should  be  deemed 
sufficient  in  the  courts  of  the  State  where  the  case  arises, 
provided  that  due  proof  of  the  existence  and  contents  of  such 
statute  is  also  given.19 


16  A  sworn  copy  of  the  original, 
with  proof  of  filing  in  the  comity 
clerk's  office,  and  loss  of  the  origi- 
nal and  production  of  a  certified 
copy  of  the  duplicate  filed  in  the 
Secretary  of  State's  office,  is  suffi- 
cient. N.  Y.  Car  Oil  Co.  v.  Rich- 
mond, 6  Bosw.  213,  s.  c.,  10  Abb. 
Pr.  185. 

Where  law  requires  the  filing  of 
articles  with  the  Secretary  of  State 
and  the  county  clerk  proof  of  such 
filing  in  both  places  is  best  evi- 
dence of  existence  of  the  corpora- 
tion. Goodale  Lumber  Co.  v. 
Shaw,  41  Ore.  544,  69  Pac.  Rep. 
546. 

Proof  of  filing  in  one  office  held 
sufficient  evidence  of  incorpora- 
tion. Spokane,  etc.,  Lumber  Co. 
v.  Loy,  21  Wash.  501,  58  Pac. 
Rep.  672,  60  Pac.  Rep.  1119. 

17  Leonardsville  Bank  v.  Willard, 
25  N.  Y.  574;  Bank  of  Toledo  ». 


International  Bank,  21  Id.  542; 
De  Witt  v.  Hastings,  40  Super.  Ct. 
(J.  &  S.)  475. 

18  All  Saints'  Church  v.  Lovett, 
1  Hall,  191. 

19  Eagle  Works  v.  Churchill,   2 
Bosw.  166,  Ang.  &  A.  on  Corp., 
§  635.      Produce    an    exemplified 
copy  of  the  papers  on  file,  with  au- 
thentication of  the  certifying  of- 
ficer's act  and  power,  either  ac- 
cording to  R.  S.  U.  S.,  §  906,  or 
according  to  the  law  of  the  fprum. 
And  by  a  recent  statute  of  New 
York,  if  the  certificate  of  organi- 
zation of  incorporation  in  any  other 
State  or  territory,  or  in  Canada, 
is  by  the  local  laws  prima  facie 
evidence  of  its  existence,  the  cer- 
tificate   duly    exemplified,    or   an 
exemplified  copy,   is  equally  evi- 
dence in  the  New  York  courts. 
L.  1877,  p.  333,  c.  311;  see  N.  Y. 
Code  of  Civ.  Pro.,  §§  957,  958. 


96 


ACTIONS  BY  AND  AGAINST  CORPORATIONS 


14.  Official  Permission  to  do  Corporate  Business. 

If  the  statute  requires  an  official  certificate  by  supervis- 
ing State  officers  to  authorize  a  corporation  to  commence 
business,  a  certificate  that  it  is  so  authorized,  founded  on  a 
professed  compliance  with  the  law  and  accompanied  with 
proof  of  user,  is  sufficient,  but  not  exclusive  20  evidence  of 
its  corporate  existence,21  at 22  and  after  the  time  when  it 
was  given,23  without  further  proof  of  organization.24  Where 
the  adverse  party  has  dealt  with  the  company  as  a  corpora- 
tion— for  instance  as  its  collecting  agent, — its  existence  is 
sufficiently  proved  by  the  general  law  and  the  certificate  of 
organization,  without  the  certificate  that  it  was  authorized 
to  commence  business.25  But  in  an  action  for  tolls,  the  of- 
ficial certificate  is  the  only  and  conclusive  evidence  of  the 
condition  of  the  way.26 


20  Duke   v.   Cahaba   Nav.    Co., 
10  Ala.  N.S.  87, 91. 

The  original  warrant  issued  to 
the  corporation  must  be  produced 
in  order  to  prove  existence  of  the 
corporation.  McKenney  v.  Bowie, 
94  Me.  397,  47  Atl.  Rep.  918. 

21  Jones  v.  Dana,  24  Barb.  402, 
ALLEN,  J.    At  least  to  go  to  the 
jury. 

The  certificate  of  the  Secretary 
of  State  and  a  copy  of  the  original 
record  in  his  office  is  sufficient  proof. 
Concord  Apartment  House  Co.  v. 
Alaska  Refrigerator  Co.,  78  111. 
App.  682. 

22  Hyatt  v.  Esmond,  37  Id.  601. 
If  business  is  carried  on  before  a 

certificate  of  complete  organiza- 
tion is  filed  as  required  by  law, 
the  directors  are  liable  for  the 
debts  so  contracted.  Vestal  Co. 
v.  Robertson,  277  111.  425, 115  N.  E. 
Rep.  629. 


23  Williams  v.  Babcock,  25  Barb. 
109. 

"Grubb  v.  Mahoning  Nav.  Co., 
14  Pa.  St.  302.  In  Bill  v.  Great 
W.  Turnpike  Co.,  14  Johns.  416, 
it  was  held  that,  as  against  a  sub- 
scriber for  stock,  the  executive 
certificate  of  authority  to  com- 
mence business  was  not  sufficient 
evidence  of  organization.  The 
records  should  be  produced. 

Certificate  of  Secretary  of  State 
proves  the  existence  of  the  cor- 
poration. Boatmen's  Bank  v.  Gil- 
lespie,  209  Mo.  217,  108  S.  W. 
Rep.  74. 

26  So  held  in  case  of  a  foreign 
corporation.  Bank  of  Toledo  v. 
International  Bank,  31  N.  Y.  542. 

Where  it  is  shown  that  a  foreign 
corporation  has  not  complied  with 
the  law  authorizing  it  to  do  busi- 
ness in  a  State,  its  directors,  offi- 
cers, and  agents  are  personally 


»  Duke  v.  Cahawba  Nav.  Co.,  10  Ala.  N.  S.  87,  91. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  97 

15.  Disregard  of  Statute  Conditions. 

Where  the  question  is  not  raised  by  or  against  the  State, 
nor  upon  a  subscription  contract  such  as  requires  for  its 
consideration  a  legal  organization,  the  fact  that  the  steps 
of  organizing,  and  proceeding  to  business,  did  not  comply 
with  express  conditions  of  the  charter  or  general  law,  does 
not  necessarily  affect  the  case,  if  there  is  color  of  organiza- 
tion and  proof  of  user.27  Compliance  is  presumed  hi  the 
absence  of  evidence  to  the  contrary; 28  and  so  long  as  the 
State  does  not  interfere,  the  question,  plainly  intended  as 
such  cannot  be  raised  by  an  individual.29 

16.  Effect  of  Proof  of  User. 

As  a  general  rule,  alike  in  actions  by  and  against  corpo- 
rations, the  other  party  sufficiently  supports  his  allegation 
of  incorporation  by  showing  the  charter,  or  the  general  law 
and  certificate  filed,  together  with  actual  use  of  the  powers 
and  privileges  of  an  incorporated  company  under  the  name 
designated  in  the  charter  or  certificate.30  User  duly  thus 
proved  is  enough,  without  proving  a  formal  acceptance  of 
the  charter; 31  and  where  there  is  proof  of  user,  the  certifi- 

liable  for  debts  contracted  by  them  tion  no  one  except  the  State  can 

in  its  name.    Ryerson  v.  Shaw,  277  question  its  corporate  existence  in 

111.  524,  115  N.  E.  Rep.  650.  a   direct   proceeding.     Boatmen's 

27Gaines  v.  Bank  of  Miss.,   12  Bank  v.  Gillespic,   209  Mo.  217, 

Ark.   (Eng.)   769;  Bank  of  Man-  108  S.  W.  Rep.  74. 

Chester  v.  Allen,  11  Vt.  302;  Leon-  If  a  corporation  fails  to  file  its 

ardsville  Bank  v.  Willard,  25  N.  Y.  certificate  in  the  county,  the  State 

574.  alone,   in   its  sovereign   capacity, 

28  Williams  v,  Cheney,  3  Gray,  can  complain.    Woods  Gold  Min. 

220;  and  see  17  Mete.  592,  and  Co.  v.  Royston,  46  Colo.  191,  103 

cases    cited;    Colonial    Bank    of  Pac.    Rep.   291.     See   also  Cent. 

Australasia   t>.   Willan,   L.    R.    5  Dig.,  §  77;  Dec.  Dig.,  §  29. 

P.  C.  417,  s.  c.,  9  Moak's  Eng.  225.  M  Narragansett  Bank  v.  Atlantic 

» Union  Horse    Shoe  Works  v.  Silk  Co.,  3  Mete.  282,  288. 

Lewis,  1  Abb.  U.  S.  518,  s.  c.,  1  "Trott  v.  Warner,  11  Me.  227; 

Withr.  Corp.  Gas.  73.  Came  v.  Brigham,  39  Id.  35. 

After  the  Secretary  of  State  has  In  criminal  prosecutions  involv- 

issued  the  certificate  of  incorpora-  ing  proof  of  the  existence  of  a  cor- 


98  ACTIONS   BY   AND    AGAINST   CORPORATIONS 

cate  is  admissible,  though  defective; 32  and  if  the  steps  taken 
for  organization  are  so  defective  as  to  be  merely  colorable, 
the  corporate  existence  may  still  be  shown  by  proof  of 
user.33  If  performance  of  conditions  be  necessary,  proof  of 
user  raises  a  presumption  of  performance.34  One  who  par- 
ticipated in  the  acts  of  user  cannot  object  that  there  was  no 
due  incorporation.35 

17.  Mode  of  Proving  User. 

A  single  act  may  not  be  sufficient  to  establish  user,36  but 
any  evidence  is  competent  showing  the  repeated  perform- 
ance of  characteristically  corporate  acts;  that  is  to  say,  acts 
which  involve  franchises  which  partnerships  and  associations 
have  no  right  to  assume, — for  instance,  presuming  to  sue 
by  a  name  of  incorporation;  or  to  have  and  use  a  common 
seal;  or,  without  any  joint-stock  company  law,  to  claim  a 
perpetual  succession  by  which  to  hold  lands,  or  permit 
shares  to  be  transferable;  or  the  acquisition  and  enjoyment 
of  the  necessary  property  for  a  corporate  use; 37  expending 

poration,   proof  of  user  is  prima  dividends  bars  the  right  to  ques- 

facie  evidence  of  corporate  exist-  tion  its  lawful  existence.    Lincoln 

ence.     Waller  v.  People,   175  111.  Park  Chapter  No.  177,  R.  A.  M. 

221,  51  N.  E.  Rep.  900.    To  the  v.  Swatek,  204  111.  228,  68  N.  E. 

same  effect  Whiteman  v.  People,  Rep.  429. 

83  111.  App.  369.  M  Per  ALLEN,  J.,  Buffalo,  etc., 

"Danneborge    Mining    Co.    v.  R.   R.    Co.    v.    Gary,   26    N.   Y. 

Barrett,  26  Cal.  286.  79. 

33  Even  in  an  action  on  a  sub-  Where  the  evidence  shows  that 

scription  for  stock.    Buffalo,  etc.,  there  were  no  meetings  of  the  mem- 

R.    R.    Co.    v.    Gary,   26   N.   Y.  bers   or   trustees,   no   election   of 

75.  officers,   no   by-laws  adopted,   no 

"Williams   v.    Union   Bank,    2  certificates  of  shares  or  member- 

Humph.  339.  ship   issued,   no   seal   adopted   or 

Presumption    of    due    organiza-  used,  no  records  or  minutes  kept, 

tion     of     cemetery     corporation.  i.  e.,  no  corporate  acts  performed, 

Packard  v.  Old  Colony  R.  Co.,  168  it  will  support  a  finding  that  there 

Mass.  92,  46  N.  E.  Rep.  433.  was  no  de  facto  corporation.    Wall 

35  Aspinwall  t;.  Sacchi,  57  N.  Y.  v.  Mines,  130  Cal.  27,  62  Pac.  Rep. 

338,  and  cases  cited.  386. 

Participation     in     corporation's  "  Buffalo,  etc.,  R.  R.  Co.  v.  Gary, 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


99 


money  and  incurring  liabilities  in  preparation  for  corporate 
transactions; 38  maintaining  a  place  of  business  where  the 
company  continually  carried  on  the  corporate  business  spec- 
ified; 39  and  the  fact  that  their  business  was  managed  by  di- 
rectors chosen  from  tune  to  time; 40  the  fact  that  they  is- 
sued or  received,  and  acted  on  documents  such  as  insurance 
policies,  bonds  for  fidelity  of  officers; 41  and  the  like. 

18.  Admission  of  Incorporation. 

A  mere  parol  admission  that  the  body  was  incorporated 
is  competent  evidence,  against  the  party  who  made  it,  of 
the  fact  of  acceptance  of  the  charter  or  of  organization  under 
a  general  law; 42  but  is  never  conclusive  unless  connected 
with  circumstances  raising  an  equitable  estoppel  against 


26  N.  Y.  76;  All  Saints'  Church  v. 
Lovett,  1  Hall,  191. 

When  the  name  of  a  party  to  a 
suit  is  such  as  to  import  that  the 
party  is  a  corporation  there  is  a 
presumption  to  this  effect  until 
the  contrary  is  shown.  The  name 
"The  Cable  Company"  imports  a 
corporation.  Holcomb  v.  Cable 
Co.,  119  Ga.  466,  46  S.  E.  Rep. 
671. 

38  Buffalo,   etc.,  R.    R.    Co.    v. 
Gary,  above;  but  compare  De  Witt 
v.  Hastings,  40  Super.  Ct.   (J.  & 
S.)  463,  475. 

39  U.  S.  Bank  v.  Stearns,  15  Wend. 
314;  Commonro  v.  Bakeman,  105 
Mass.  56,  60. 

«Utica  Ins.  Co.  v.  Tillman,  1 
Wend.  556;  Wilmington,  etc.,  R. 
R.  Co.  v.  Saunders,  3  Jones  L.  R. 
126. 

Evidence  held  sufficient  to  meet 
a  plea  of  nul  lid  corporation,  where 
the  corporation  transacted  its  busi- 
ness under  the  management  of 


persons  acting  as  a  board  of  direct- 
ors. Holt  v.  Tennent-Stribling 
Shoe  Co.,  69  111.  App.  332. 

41  Cahill  v.  Kalamazoo  Ins.  Co., 
2  Dougl.  124. 

Where  the  United  States  gov- 
ernment conveys  by  patent  to  a 
company  as  a  corporation,  and 
where  the  State  has  recognized  the 
company  as  a  corporation  by  do- 
nating lands  to  it,  and  where  the 
company  assumed  to  convey  the 
same  lands  as  a  body  corporate, 
such  evidence  is  enough  to  estab- 
lish prima  fade  the  existence  of  the 
corporation.  Altschul  v.  Casey, 
45  Ore.  182,  76  Pac.  Rep.  1083. 

42  Thus  defendant's  letters,  ad- 
mitting that  he  held  the  money  of 
the  bank,  plaintiff,  were  admitted 
in  evidence  by  ABBOTT,  C.  J.,  in 
connection  with  a  charter  raising 
a   question   of  misnomer,   and   it 
was  left  to  the  jury  to  say  that  the 
bank  was  the  same.     Nat.  Bk.  v. 
De  Bernales,  1  Car.  &  P.  569. 


100 


ACTIONS   BY   AND    AGAINST   CORPORATIONS 


him.43  To  give  cogency  to  such  an  admission  or  estoppel 
it  should  clearly  import  corporate  as  distinguished  from  as- 
sociate character.44  The  estoppel  does  not  conclude  the 
party  as  to  the  existence  of  legislative  sanction,  but  only  as 
to  matters  of  fact,  such  as  organization  and  user.45  And 
when  the  estoppel  exists,  it  need  not  be  pleaded,  but  is  to 
be  given  in  evidence  in  aid,  or  instead,  of  direct  proof.46 


43  Welland  Canal  Co.  v.  Hatha- 
way, 8  Wend.  480.  This  case  is 
sound  in  its  conclusion;  although 
some  of  the  reasons  assigned — as 
that  a  corporation  could  not  be 
estopped,  and  that  an  ambiguous 
admission  would  not  be  competent, 
— are  not  now  the  jpides.  The 
fact  that  the  note  in  suit  was  made 
payable  at  a  specified  national 
bank,  who  are  plaintiffs,  does  not 
raise  a  presumption  of  law  that 
they  are  a  corporation,  but  is  only 
evidence  for  the  jury.  Hunger- 
ford  Nat.  Bk  v.  Van  Nostrand,  106 
Mass.  559.  So  defendant's  cor- 
respondence with  a  bank  as  its 
collecting  agent  is  competent,  to- 
gether with  user  of  corporate  fran- 
chises, under  color  of  an  act  au- 
thorizing the  incorporation.  Bank 
of  Toledo  v.  International  Bank, 
21  N.  Y.  542.  Contra,  1  Greenl. 
Ev.,  13th  ed.  240,  §  203.  Many 
cases  in  the  books  lay  down  the 
rule  in  unrestrained  language  to 
the  effect  that  he  who  deals  with  a 
corporation  cannot  deny  its  char- 
acter when  sued  on  the  contract, 
but  the  rule  depends  on  the  exist- 
ence of  facts  constituting  an  equi- 
table estoppel.  In  the  leading  case, 
Henriquez  v.  Dutch  West  India  Co., 
2  Ld.  Raym.  1535,  the  cause  of 
action  was  a  bail  bond  given  by 


defendants  to  the  company,  plain- 
tiff, hi  a  name  explicitly  importing 
incorporation,  and  in  an  action  in 
which  the  incorporation  was 
proved. 

44  Id.  Contra,  McBroon  t>.  Leb- 
anon, 31  Ind.  268,  s.  c.,  1  Withr. 
Corp.  Gas.  373. 

46  See  paragraph  5,  above. 

If  there  is  no  law  authorizing 
the  organization  of  the  corporation 
there  can  be  no  corporation  de 
facto,  and  one  who  deals  with  such 
corporation  is  not  estopped  from 
denying  its  legal  existence.  Im- 
perial Bldg.  Co.  v.  Chicago  Open 
Board  of  Trade,  238  111.  100,  87  N. 
E.  Rep.  167. 

If  partners  use  the  name  of  a 
supposed  corporation  which  they 
have  attempted  but  failed  to  or- 
ganize according  to  law,  they  can- 
not escape  their  liability  as  part- 
ners. Harrill  v.  Davis,  168  Fed. 
Rep.  187,  94  C.  C.  A.  47  22  L.  R. 
A.  (N.  S.)  1153. 

16  NELSON,  J.,  Welland  Canal 
Co.  v.  Hathaway,  8  Wend.  482. 

A  receipt  which  shows  a  contract 
to  have  been  made  with  a  corpo- 
ration in  its  corporate  name  as 
well  as  the  receipt  of  money  from 
such  corporation,  is  competent  ev- 
idence as  to  the  corporate  exist- 
ence of  the  company.  Sierra  Land, 


rORHBY   AT   L 

ACTIONS   BY   AND   AGAINST   CORPORATIONS  101 


19.  Estoppel  against  the  Company. 

It  is  a  general  principle  that  at  least  where  there  is  an  act 
or  charter  in  existence  under  which  a  company  by  taking 
the  proper  steps  can  become  a  corporation,  if  a  company 
does  de  facto  organize  and  hold  itself  out  as  a  corporation, 
contracting  obligations  as  such,  it  cannot,  when  sued  upon 
such  obligations  by  persons  who  have  dealt  with  it  as  such, 
in  good  faith,  be  permitted  to  avoid  a  corporate  liability 
thereon,  by  setting  up  that  it  has  not  taken  all  the  steps 
prescribed  as  conditions  predecent  to  its  legal  existence.47 


etc.,  Co.  v.  Bricker,  3  Cal.  App.  190, 
85  Pac.  Rep.  665. 

47Slocum  v.  Warren,  10  R.  I. 
124,  and  cases  cited. 

A  corporation  is  estopped  to  deny 
it  was  a  corporation  when  it  issued 
a  certificate  in  which  its  name  im- 
ported that  it  was  a  corporation, 
and  which  was  signed  by  its  presi- 
dent and  secretary  and  attested 
with  its  seal,  and  hi  the  body  of 
which  certificates  its  constitution 
and  by-laws  are  referred  to  as  fix- 
ing the  conditions  and  amount  of 
recovery.  Chicago  City  Ry.,  etc., 
Ass'n  v.  Hogan,  124  111.  App.  447. 

On  the  trial  of  an  indictment 
against  a  corporation  any  evidence 
at  all  which  tends  to  show  its  de 
facto  existence  is  sufficient.  Stand- 
ard Oil  Co.  v.  Commonwealth,  29 
Ky.  Law  Rep.  5,  91  S.  W.  Rep. 
1128. 

Where  there  has  been  a  good 
faithful  effort  to  organize  a  corpo- 
ration under  a  statute,  and  corpo- 
rate functions  have  been  assumed 
and  exercised,  the  organization 
becomes  a  de  facto  corporation. 
Huntington  Mfg.  Co.  v.  Schofield, 
28  Ind.  App.  95,  62  N.  E.  Rep.  106. 


A  certificate  of  incorporation  ex- 
ecuted and  filed  hi  accordance  with 
the  law  is  evidence  of  corporate 
existence  and  justifies  strangers  hi 
doing  business  with  the  corpora- 
tion without  further  examining 
into  the  subscriptions  to  the  stock. 
Gunderson  v.  Illinois  Trust  &  Sav- 
ings Bk.,  199  111.  422,  65  N.  E.  Rep. 
326,  affirming  100  111.  App.  461. 

An  insurance  company,  which 
is  admitted  by  itself  to  have  been 
at  one  time  a  legal  corporation, 
after  having  contracted  with  the 
plaintiff  as  such  corporation  and 
in  the  apparent  exercise  of  corpo- 
rate franchises  and  powers  and  hav- 
ing from  time  to  tune  reaffirmed 
the  existence  and  powers  of  said 
corporation  by  the  acceptance  of 
premiums  due  and  owning  on  the 
policy,  may  not  be  permitted  to 
deny  its  own  existence,  and  thus 
escape  liability  for  its  contracts. 
Brady  v.  Delaware  Mut.  L.  Ins. 
Co.,  18  Del.  237,  45  Atl.  Rep.  345. 

An  irrigation  corporation  which 
has  received  the  full  consideration 
for  which  its  bonds  were  issued, 
and  has  built  its  works  with  the 
proceeds,  and  uses  such  works  for 


102 


ACTIONS    BY   AND    AGAINST   CORPORATIONS 


When  such  a  defense  is  set  up,  it  is  for  those  who  rely  on  it 
to  show  that  they  acted  under  an  honest  mistake,  and  that 
the  other  party  was  not  misled  to  his  prejudice  thereby.48 
And  upon  the  same  ground  a  corporation  which  has  dealt 
in  excess  of  its  powers,  and  retains  the  fruit  of  its  dealing, 
cannot,  nor  can  any  one  in  its  place,  refuse  to  pay  the  con- 
sideration to  one  who  acted  in  good  faith.49 


the  purposes  intended,  and  acts  as 
a  corporation  at  all  times,  cannot 
escape  liability  for  the  principal 
and  interest  on  the  bonds  on  the 
ground  that  it  was  never  legally  or- 
organized  and  had  no  legal  right 
to  issue  bonds.  Citing  Douglas 
County  v.  Bolles,  94  U.  S.  104,  110, 
24  L.  ed.  46,  where  the  court  said: 
"Common  honesty  demands  that 
a  debt  thus  incurred  be  paid." 
Tulare  Irr.  Dist.  v.  Shepard,  185 
U.  S.  1,  22  S.  Ct.  531, 46  L.  ed.  773, 
affirming  94  Fed.  Rep.  1. 

Where  the  company  represents 
in  a  letter  to  plaintiff's  assignors 
that  it  was  a  corporation,  it  is  suf- 
ficient evidence  to  support  the  find- 
ing of  the  corporate  character  of 
the  company.  Marx  v.  Raley,  6 
Cal.  App.  479,  92  Pac.  Rep.  519. 

"Callender  v.  Painesville,  etc., 
R.  R.  Co.,  11  Ohio  St.  516,  526. 

Parties  recognizing  the  existence 
of  corporations  by  dealing  with 
them  have  no  right  to  object  to 
any  irregularity  hi  their  organiza- 
tion. Kalamazoo  v.  Kalamazoo 
Heat,  etc.,  Co.,  124  Mich.  74,  82 
N.  W.  Rep.  811. 

A  foreign  corporation  is  estopped 
from  making  the  defense  that  it 
had  no  lawful  authority  to  do  busi- 
ness or  make  the  contract  out  of 
which  the  cause  of  action  arose,  but 


the  other  party  to  the  contract  is 
not  estopped  to  deny  its  validity 
and  to  assert  his  rights.  Ryerson 
v.  Shaw,  277  111.  524,  115  N.  E. 
Rep.  650. 

49  Parish  v.  Wheeler,  22  N.  Y. 
494. 

Where  a  note  is  signed  by  the 
president  but  not  countersigned 
by  the  treasurer  of  a  corporation 
and  the  paper  is  not  diverted  from 
its  original  purpose,  and  the  com- 
pany received  the  benefits  of  the 
proceeds  and  the  paper  is  in  the 
hands  of  a  bona  fide  holder,  a  valid 
legal  obligation  is  created,  and  the 
fact  that  the  treasurer  did  not 
countersign  constitutes  no  defense. 
Bigelow  Co.  v.  Automatic  Gas 
Producer  Co.,  56  N.  Y.  Misc.  389, 
107  N.  Y.  Supp.  894. 

An  ultra  vires  contract  which  is 
no  longer  executory  and  is  not 
tainted  by  fraud  or  clearly  pro- 
hibited by  statute  or  condemned 
by  sound  public  policy,  cannot  be 
impeached  by  the  corporation  or 
anyone  representing  it.  Eastman  v. 
Parkinson,  133  Wis.  375,  113  N. 
W.  Rep.  649,  13  L.  R.  A.  N.  S. 
921. 

A  corporation  may  not  avail  it- 
self of  ultra  vires  as  a  defense  where 
a  contract  has  been  entered  into 
and  executed  in  good  faith  by  the 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


103 


20.  Estoppel  against  those  Dealing  with  the  Company. 

Upon  the  same  principle  one  who  has  contracted  with  a 
de  facto  corporation, 50  either  directly  or  through  an  agent 


other  party  and  the  corporation 
has  received  the  benefit  of  the 
performance.  Pannebaker  v.  Tus- 
carora  Valley  R.  Co.,  219  Pa.  60,  67 
Atl.  Rep.  923. 

"A  corporation  which  accepts 
the  benefit  of  a  contract  made  by 
an  officer  without  authority  is  es- 
topped from  denying  the  authority 
of  such  agent  or  officer  if  the  con- 
tract is  one  within  the  charter 
powers  of  the  corporation."  Ala- 
bama Fidelity  &  Casualty  Co.  v. 
Jefferson  Co.  Savings  Bank  (Ala.), 
73  So.  Rep.  918. 

A  corporation  cannot  retain 
the  profits  of  a  transaction,  or 
anything  of  value  received  from 
the  other  party  thereto,  and  set 
up  ultra  vires  as  a  defense  to  the 
enforcement  of  the  contract. 
Wrightsville  Hardware  Co.  v.  Mc- 
Elroy,  254  Pa.  422,  98  Atl.  Rep. 
1052. 

In  order  to  estop  a  corporation, 
because  of  its  course  of  dealing, 
from  denying  the  authority  of  its 
president  or  board  of  directors  to 
act,  one  must  show  that  he  relied 
upon  such  course  of  dealings.  Stan- 
ley v.  Franco-American  Ferment 
Co.,  161  N.  Y.  Supp.  365,  97  Misc. 
401. 

M0'Hara  v.  Mobile  &  Ohio  R. 
Co.,  40  U.  S.  App.  471,  76  Fed. 
Rep.  718;  Plummer  v.  Struby- 
Estabrooke  Mercantile  Co.,  23 
Colo.  190,  47  Pac.  Rep.  294. 

One  who  deals  with  a  corpora- 


tion as  existing  in  fact  is  estopped 
to  deny  as  against  the  corporation 
that  it  has  been  legally  organized. 
Close  v.  Glenwood  Cemetery,  107 
U.  S.  466,  2  Stat.  267,  27  L.  ed. 
408;  Seven  Star  Grange  No.  73, 
P.  H.  v.  Fergusson,  98  Me.  176,  56 
Atl.  Rep.  648;  Owensboro  Wagon 
Co.  v.  Bliss,  132  Ala.  253,  31  So. 
Rep.  81,  90  Am.  St.  Rep.  907; 
Palatine  Ins.  Co.  v.  Santa  F6  Mer- 
cantile Co.,  13  N.  M.  241,  82  Pac. 
Rep.  363;  Kalamazoo  v.  Kalamazoo 
Heat,  etc.,  Co.,  124  Mich.  74,  82 
N.  W.  Rep.  811;  First  National 
Bank  of  Decatur  v.  Henry,  159 
Ala.  367,  49  So.  Rep.  97;  Harrill  v. 
Davis,  168  Fed.  Rep.  187,  94 
C.  C.  A.  47,  22  L.  R.  A.  N.  S. 
1153;  Hasbrouck  v.  Rich,  113 
Mo.  App.  389,  88  S.  W.  Rep. 
131. 

The  fact  that  a  creditor  has  con- 
tracted with  a  company  holding 
itself  out  as  a  corporation  does  not 
necessarily  work  an  estoppel  to 
deny  its  legal  corporate  -existence. 
Provident  Bank,  etc.,  Co.  v.  Saxon, 
116  La.  408,  40  So.  Rep.  778. 

One  who  deals  with  a  de  facto 
corporation  is  estopped  from  deny- 
ing its  existence  and  thereby  hold- 
ing the  supposed  corporators  liable 
as  partners.  Tennessee  Automatic 
Lighting  Co.  v.  Massey  (Tenn.), 
56  S.  W.  Rep.  35. 

One  who  contracts  with  and 
receives  money  from  a  corporation 
cannot  escape  liability  by  denying 


104 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


designated  as  such  in  an  obligation  naming  the  corpora- 
tion,51 and  who  retains  or  has  applied  the  fruits  of  his  deal- 


its  capacity  to  sue.  Thompson  v. 
Commercial  Union  Assur.  Co.,  20 
Colo.  App.  331,  78  Pac.  Rep.  1073. 

When  an  individual  receives  the 
property  of  a  corporation  through 
a  contract  made  with  such  cor- 
poration by  its  corporate  name, 
and  there  is  extrinsic  proof  of  the 
user  by  it  of  corporate  powers, 
such  individual  is  estopped  from 
disputing  the  incorporation  hi  "an 
action  brought  to  compel  an  ac- 
counting for  such  property.  Com- 
mercial Bank  of  Keokuk  v.  Pfeiffer, 
108  N.  Y.  242,  15  N.  E.  Rep.  311. 

The  owner  of  a  bond  and  mort- 
gage who  is  induced  by  fraudulent 
representations  to  assign  such  bond 
and  mortgage  to  a  corporation, 
which  hi  turn  assigns  it  to  a  bona 
fide  holder  for  value,  cannot  as 
against  such  bona  fide  holder  ques- 
tion the  validity  of  the  corpora- 
tion's existence,  on  the  theory  that 
if  two  innocent  persons  must  suffer 
by  a  deceit  he  who  puts  trust  and 
confidence  hi  the  deceiver  should 
be  a  loser,  rather  than  a  stranger. 
Green  v .  Grigg,  98  N.  Y.  App.  Div. 
445,  90  N.  Y.  Supp.  565. 

A  shareholder  who  has  affirma- 
tively acquiesced  in  the  acts  of  the 
directors  is  estopped  from  attack- 
ing their  validity.  Jackson  v. 
Crown  Point  Mm.  Co.,  21  Utah,  1, 
59  Pac.  Rep.  238,  81  Am.  St.  Rep. 
651. 

Where  one  railroad  company 
contracts  with  another  to  deprive 
itself  of  a  franchise,  the  latter  is 
not  estopped  from  denying  the 


corporate  existence  of  the  former, 
as  there  can  be  no  estoppel  as  to 
matters  which  did  not  arise  out 
of  the  contract.  Wilmington  City 
Ry.  Co.  v.  Wilmington,  etc.,  Ry. 
Co.,  8  Del.  Ch.  468,  46  Atl.  Rep.  12. 

The  legality  of  the  organization 
of  a  de  facto  corporation  cannot 
be  questioned  in  a  collateral  pro- 
ceeding. Otoe  County  Fair,  etc., 
Assoc.  v.  Doman,  1  Neb.  (Unof.) 
179, 95  N.  W.  Rep.  327. 

If  a  person  deals  with  an  associa- 
tion known  as  Dan  Head  &  Co.  as 
a  corporation,  such  dealing,  by  es- 
toppel, as  to  such  transaction,  fixed 
the  status  of  the  company  to  be 
what  it  was  represented  and  recog- 
nized to  be  therein.  Clausen  v. 
Head,  110  Wis.  405,  85  N.  W. 
Rep.  1028,  84  Am.  St.  Rep.  933. 

One  who  deals  with  an  associa- 
tion as  a  corporation  is  estopped 
from  denying  its  corporate  existence 
under  Georgia  Civil  Code,  §  1862. 
Collins  v.  Citizens'  Bank,  etc.,  Co., 
121  Ga.  513,  49  S.  E.  Rep.  594. 

"Vater  v.  Lewis,  36  Ind.  288; 
s.  c.,  10  Am.  Rep.  29. 

It  does  not  lie  in  the  mouth  of  a 
man  who  borrows  money  from  a  de 
facto  bank  to  set  up  in  defense  to 
an  action  to  recover  that  money 
that  the  bank  had  no  right  to  exist. 
Campbell  v.  Perth  Amboy  Ship- 
building, etc.,  Co.,  70  N.  J.  Eq.  '40, 
62  Atl.  Rep.  319. 

One  who  has  dealt  with  a  de 
facto  corporation  as  such  cannot 
question  the  validity  of  its  existence 
at  least  so  far  as  transactions  within 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


105 


ings  with  it,52  or  who  has  accepted  from  the  company  a  cor- 
porate office  and  so  received  its  property,53  cannot  contest 


its  supposed  corporate  powers  are 
concerned.  Oilman  v.  Druse,  111 
Wis.  400,  87  N.  W.  Rep.  557. 

No  person  sued  on  a  contract 
made  with  a  corporation  will  be 
permitted  to  set  up  the  want  of 
legal  organization  in  defense  to 
such  action.  Lincoln  Butter  Co. 
v.  Edwards-Bradford  Lumber  Co., 
76  Neb.  477,  107  N.  W.  Rep.  797. 

One  who  deals  with  a  corpora- 
tion in  such  a  manner  as  to  recog- 
nize its  existence,  and  thereby 
causes  it  to  change  its  condition  to 
its  detriment,  is  estopped  from 
denying  as  against  it  that  it  has 
been  legally  organized.  Spreyne  v. 
Garfield  Lodge,  No.  1,  U.  S.  B.  S., 
117  111.  App.  253;  Carroll  v.  Pacific 
National  Bk.,  19  Wash.  639,  54 
Pac.  Rep.  32. 

One  who  signs  a  note  to  the  order 
of  "The  Plattner  Implement  Com- 
pany, a  corporation  duly  organized 
under  the  laws  of  Colorado"  is 
estopped  from  denying  the  com- 
pany's legal  corporate  existence. 
Young  v.  Plattner  Implement  Co., 
41  Colo.  65,  91  Pac.  Rep.  1109. 

Those  who  dealt  with  a  railroad 
company  as  a  corporation  cannot 
make  the  objection  that  it  is  not  a 
corporation.  Rannels  v.  Rowe, 
145  Fed.  Rep.  296,  74  C.  C.  A.  376. 
'he  members  of  a  corporation 
are  not  individually  liable  where  it 
is  a  corporation  de  facto,  though 
not  de  jure,  and  the  plaintiff  has 
dealt  with  it  as  a  corporation. 
Love  v.  Ramsey,  139  Mich.  47, 
102  N.  W.  Rep.  279. 


The  existence  of  a  de  facto  cor- 
poration cannot  be  collaterally 
attacked.  Clark  v.  American  Can- 
nel  Coal  Co.,  35  Ind.  App.  65,  73 
N.  E.  Rep.  727. 

Where  the  plea  of  nvl  tiel  cor- 
poration is  set  up  all  that  is  re- 
quired to  meet  it  is  proof  of  a 
corporation  de  facto.  Holt  v.  Ten- 
nent  Stribling  Shoe  Co.,  69  111. 
App.  332. 

62  Palmer  v.  Lawrence,  3  Sandf . 
161,  and  cases  cited. 

Where  a  mortgage  is  made  to  a 
banking  corporation  as  such,  the 
mortgagor  is  estopped  to  deny  the 
corporate  existence  of  the  bank. 
Citizens'  Bank  v.  Jones,  117  Wis. 
446,  94  N.  W.  Rep.  329. 

A  person  who  has  contracted 
with  an  incorporated  building  and 
loan  association  as  such  is  estopped 
from  asserting  that  it  is  not  a  cor- 
poration. Eagle  Savings  &  Loan 
Co.  v.  Samuels,  43  N.  Y.  App.  Div. 
386,  60  N.  Y.  Supp.  91. 

One  who  borrows  from  a  build- 
ing and  loan  association  solemnly 
recognizes  the  association  as  a  valid 
building  incorporation  and  is  es- 
topped from  questioning  its  -exist- 
ence. Deitch  v.  Staub,  53  Cir.  Ct. 
App.  137,  115  Fed.  Rep.  309. 

"All  Saints'  Church  v.  Lovett, 
Hall,  197. 

One  who  contracts  with  an  as- 
sociation about  to  be  incorporated 
and  who  takes  part  in  the  organiza- 
tion, but  who  severs  his  connection 
with  it  before  actual  incorporation 
and  does  not  accept  corporate 


106 


ACTIONS   BY   AND    AGAINST    CORPORATIONS 


his  liability  in  respect  to  such  dealings  on  the  ground  of  any 
defect  hi  its  organization,54  nor  on  the  ground  that  the  deal- 
ings hi  question  were  ultra  vires,55  or  even  forbidden  by  the 
charter.56  This  estoppel,  it  is  true,  is  conclusive  only  as  to 
the  existence  and  power  at  the  time  the  transactions  were 
had,  but  the  existence  is  presumed  to  continue  so  that  cor- 
porate power  to  sue  and  be  sued  is  conclusively  implied, 
unless  dissolution  by  the  State  is  shown. 

21.  Estoppel  against  Members  and  Subscribers. 

It  is  often  said  that  one  who  subscribes  for  stock  in  a 
company  cannot,  when  sued  on  his  subscription  or  on  the 
corporator's  individual  liability  for  the  debts  of  a  corpora- 
tion, question  the  corporate  character  and  power  to  con- 
tract which  he  has  thus  admitted; 57  but  the  true  rule  in  re- 


office  to  which  he  is  elected  is  not 
estopped  from  asserting  that  it 
is  not  a  corporation.  Byronville 
Creamery  Ass'n  v.  Ivers,  93  Minn. 
8,  100  N.  W.  Rep.  387. 

54  Palmer  v.  Lawrence,  above. 

"Parish  v.  Wheeler,  22  N.  Y. 
494. 

The  plea  of  ultra  vires  is  not  to 
be  interposed  by  a  stranger  to  the 
contract.  Hazel  wood  Brewing  Co. 
v.  Siebert  (Pa.),  100  Atl.  Rep.  493. 

68  Steam  Nav.  Co.  v.  Weed,  17 
Barb.  378,  A.  J.  PAHKER,  J. 

57  So  held  on  demurrer  in  a  fre- 
quently cited  case.  Dutchess  Cot- 
ton Manuf .  v.  Davis,  14  Johns.  238 ; 
and  see  Chubb  v.  Upton,  Sup.  Ct. 
U.  S.,  Oct.,  1877, 17  Alb.  L.  J.  77. 

The  stockholder  of  a  corporation 
at  common  law  was  not  responsible 
personally  for  any  of  the  liabilities 
of  the  corporation.  He  is  only  re- 
sponsible because  of  some  constitu- 
tional or  statutory  provision.  Gol- 


den v.  Cervenka,  278  111.  409,  116 
N.  E.  Rep.  273. 

The  liability  of  a  stockholder,  ac- 
cording to  the  laws  of  the  jurisdic- 
tion in  which  business  is  transacted, 
rests  upon  his  consent  to  be  bound 
by  such  laws.  His  consent  is  in- 
ferred from  the  fact  that  he  has  by 
his  act  of  becoming  a  stockholder, 
authorized  the  governing  officers 
of  the  corporation  to  transact  busi- 
ness in  such  State.  Provident  Gold 
Mining  Co.  v.  Haynes,  173  Cal.  44 
159  Pac.  Rep.  155. 

One  who  takes  part  hi  the  or- 
ganization of  a  corporation,  but 
withdraws  before  completion  of 
the  organization  is  not  estopped 
from  questioning  the  validity  of 
the  incorporation.  Middle  Branch 
Mut.  Tel.  Co.  v.  Jones,  137  Iowa, 
396,  115  N.  W.  Rep.  3. 

One  who  takes  part  in  the  or- 
ganization of  a  corporation  and 
contracts  with  it  before  organiza- 


ACTIONS   BY   AND   AGAINST   CORPOKATIONS 


107 


gard  to  members  and  subscribers  is  the  same  that  has  already 
been  stated  in  respect  to  other  persons,  that  the  admission 
is  not  conclusive  unless  there  is  ground  for  an  equitable  es- 
toppel— as,  for  instance,  where  one  becomes  a  member  of  a 
mutual  insurance  company,  and,  on  giving  a  premium  note, 
receives  a  policy,58  or  where  one  not  only  receives  certifi- 
cates for  shares,59  but  holds  or  appropriates  the  stock;60 


tion  is  estopped  from  denying  its 
existence.  Western  Investment 
Co.  v.  Davis,  7  Ind.  Ter.  152,  104 
S.  W.  Rep.  573,  15  Ann.  Gas.  1134. 

88  White  v.  Ross,  4  Abb.  Ct.  App. 
Dec.  590;  Trumbull  Co.  Mut.  F. 
Ins.  Co.  v.  Horner,  17  Ohio,  407. 

Stockholders  cannot  after  au- 
thorizing or  acquiescing  in  a  con- 
tract have  the  same  avoided  on  the 
ground  that  it  was  ultra  vires. 
Olson  v.  Warroad  Mercantile  Co. 
(Minn.),  161  N.  W.  Rep.  713. 

Whatever  will  estop  all  the  stock- 
holders will  estop  the  corporation 
itself.  Id. 

Although  a  subscriber  becomes  a 
shareholder  in  consequence  of 
frauds  practiced  upon  him  by  the 
corporation,  he  is  nevertheless  es- 
topped as  against  creditors  to  deny 
that  he  is  a  shareholder,  if,  at  the 
time  the  rights  of  creditors  ac- 
crued, he  voluntarily  occupied  and 
was  accorded  the  rights  apper- 
taining to  that  relation.  Bartlett 
t>.  Stephens  (Minn.),  163  N.  W. 
Rep.  288. 

A  contract  to  take  and  pay  for 
stock  in  a  corporation,  made  in 
consequence  of  fraudulent  repre- 
sentations, is  voidable  and  not 
void  and  can  only  be  avoided  sub- 
ject to  the  rights  of  creditors. 
Prompt  action  should  be  taken  by 


the  subscriber  who  seeks  to  avoid 
his  liability  on  the  ground  of  fraud. 
Kramer  v.  Hamsher,  63  Pa.  Super. 
211. 

59  De  Witt  v.  Hastings,  40  Super. 
Ct.  (J.  &  S.)  475.     The  bare  re- 
ceipt   of    a    certificate    does    not 
prove  membership,  much  less  cor- 
porate existence,   2   Whart.    Ev., 
§  1152,  citing  Chaw's'  Case,  L.  R. 
6  Ch.  266;  but  an  acknowledgment 
of  receiving  or  holding  them  may. 
Id.;  Chubb  v.  Upton,  above  cited. 

One  who  is  a  subscriber  to  stock 
in  a  corporation  cannot  defend 
himself  by  alleging  irregularity  of 
its  organization.  American  Alkali 
Co.  v.  Campbell,  113  Fed.  Rep.  398. 

One  who  accepts  stock  and  gives 
notes  for  the  amounts  due  thereon 
waives  the  right  to  question  the 
corporate  existence  of  the  company. 
Pope  v.  Merchants'  Trust  Co.,  118 
Term.  506, 103  S.  W.  Rep.  792. 

A  transferee  with  full  notice 
that  stock  though  purporting  to 
be  fully  paid  for,  is  not  really 
paid  for,  is  liable  to  corporate 
creditors  for  unpaid  subscriptions. 
Durand  ».  Brown,  236  Fed.  Rep. 
609,  149  C.  C.  A.  605. 

60  See    Palmer    v.    Lawrence,    3 
Sandf.  161;  Parish  v.  Wheeler,  22 
N.  Y.  494. 

Where  a  stockholder  and  officer 


108 


ACTIONS   BY   AND    AGAINST   CORPORATIONS 


or  where  he  participates  in  acts  of  user,  thus  aiding  to  hold 
out  the  company  to  the  world  as  a  corporation. 

22.  The  Estoppel  Liberally  Applied. 

This  rule  of  equitable  estoppel  is  freely  applied  in  further- 
ance of  justice,  both  against  companies  and  in  their  favor, 
and  in  favor  of  their  receivers  or  others  claiming  under 
them.61  The  same  general  principles  of  estoppel  which  pre- 
clude contesting  corporate  existence,  preclude  contesting 
the  fact  of  acceptance  of  a  new  power,  though  conferred  by 
law  upon  condition.62  The  equitable  estoppel,  if  raised  by 


of  a  corporation  consented  to  a 
corporate  transaction  he  is  es- 
topped from  thereafter  attacking 
it.  Fish  v.  Harrison  (N.  J.  Ch.), 
100  Atl.  Rep.  185. 

Where  a  stockholder  fails  to 
have  a  transfer  of  stock  by  him 
registered  on  the  books  of  the  cor- 
poration he  remains  liable  as  a 
stockholder  to  the  creditors  of  the 
corporation.  Kirschler  v.  Wain- 
wright,  255  Pa.  525, 100  Atl.  Rep. 
484. 

While  one  who  transfers  his 
stock  is  not  released  from  liability 
for  the  then  existing  debts  of  a  cor- 
poration, his  liability  becomes 
secondary  to  that  of  the  trans- 
feree, and  the  liability  of  both 
secondary  to  that  of  the  corpora- 
tion. Way  v.  Moers,  135  Minn. 
339, 160  N.  W.  Rep.  1014. 

61  In  an  action  by  the  company's 
indorsee  of  premium  notes  made 
by  defendant,  expressed  to  be  pay- 
able to  the  insurance  company, 
the  production  of  the  notes  is 
prima  facie  evidence  against  him 
that  the  corporation  was  duly 
organized  and  competent  to  trans- 


act the  business  in  question.  Nor 
need  the  indorsee  show,  in  the  first 
instance,  that  the  corporation  had 
complied  with  the  law  of  its  own 
State,  or  that  of  the  State  where 
contract  was  made.  Williams  v. 
Cheney,  3  Gray,  220;  Topping 
v.  Bickford,  4  Allen,  120. 

"If  the  stockholders  would  re- 
pudiate the  acts  of  their  officers, 
they  must  act  with  promptness 
or  at  least  within  reasonable  time. 
The  circumstances  of  delay  may 
be  such  as  to  give  rise  to  an  equi- 
table estoppel,  but  it  is  not  neces- 
sary that  there  should  be  facts 
sufficient  to  create  a  technical 
estoppel."  Olson  v.  Warroad  Mer- 
cantile Co.  (Minn.),  161  N.  W. 
Rep.  713. 

Ordinarily  stockholders  are 
bound  by  a  judgment  against  their 
corporation  but  they  may  go  be- 
hind the  judgment  and  impeach 
it-  for  fraud.  Robinson  v.  Phegley, 
84  Or.  124, 163  Pac.  Rep.  1166. 

62  Zabriskie  v.  Cleveland  &c. 
R.  R.  Co.,  23  How.  (U.  S.)  397, 
and  cases  cited. 

A    holding    corporation    has    a 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  109 

an  undisputed  state  of  facts,  is  for  the  court  to  pass  on,  and 
submission  to  the  jury  is  not  necessary.63  Where  there  are 
several  parties  contesting  the  question,  and  some  are  es- 
topped, a  want  of  proof  that  the  others  participated  per- 
sonally in  the  dealings  with  the  corporation  as  such,  must  be 
objected  to  at  the  trial.64 

23.  The  General  Principle  as  to  Proof  of  Incorporation. 

In  conclusion,  the  rule  of  requisite  proof  of  incorporation 
which  I  deduce  from  the  best  considered  cases,  is,  that  where 
the  issue  of  corporation  or  no  corporation  arises  only  on 
the  question  of  power  to  make  the  particular  contract,  or 
appear  as  a  party  hi  the  particular  action  in  controversy, 
it  is  necessary,  and  unless  interference  by  the  State  is  shown, 
it  is  sufficient  to  show  a  charter,  and,  under  that  charter, 
user  of  corporate  powers,  on  other  occasions  reasonably 
contemporaneous  with  the  one  in  suit;  or  to  show  a  general 
law,  and  user,  by  a  professed  organization  under  the  law,65 

separate  corporate  existence,  and  64  Leonardsville  Bank  v.  Willard, 
is  to  be  treated  as  a  separate  en-  25  N.  Y.  574,  affi'g  16  Abb.  Pr.  111. 
tity,  unless  facts  are  averred  which  Creditors  cannot  assail  a  merely 
show  that  such  separate  corporate  ultra  vires  act  of  a  corporate  officer 
existence  is  a  mere  sham,  or  has  unless  it  also  resulted  in  depleting 
been  used  as  an  instrument  for  the  assets  of  the  corporation  in 
concealing  the  truth,  or  where  the  fraud  of  creditors.  Brent  v.  Simp- 
organization  and  control  are  shown  son,  238  Fed.  Rep.  285, 151  C.  C.  A. 
to  be  such  as  that  it  is  but  an  in-  301. 

strumentality   or   adjunct   of  an-  65The  same  principle  applies  in 

other  corporation.    Martin  v.  De-  case  of  consolidation  of  corpora- 

velopment   Co.    of   America,   240  tions,     as    in    original    creation. 

Fed.  Rep.  42, 153  C.  C.  A.  78.  Mitchell  v.  Deeds,  49  111.  416,  464, 

63  Graff  v.  Pittsburgh,  etc.,  R.  R.  s.  c.,  1  Withr.  Corp.  Cas.  460. 

Co.,  31  Pa.  St.  496.  Articles  of  incorporation  prop- 

If  there  is  no  evidence  that  one  erly  authenticated  are  admissible 

has  dealt  with  a  company  as  a  cor-  in  evidence  to  show  corporate  en- 

poration,  the  court  will  not  estop  tity.    Collins  v.  Armour  Fertilizer 

him  from   questioning   the   exist-  Works,  18  Ga.  App.  533,  89  S.  E. 

ence  of  the   corporation.     Kana-  Rep.  1054. 

wha  Dispatch  v.  Fish,  219  111.  236,  The  plea  of  nuL  tiel  corporation 

76  N.  E.  Rep.  352.  does   not   impose   the   burden   of 


110  ACTIONS   BY   AND    AGAINST   CORPORATIONS 

of  corporate  powers,  on  other  occasions  reasonably  contem- 
poraneous with  those  in  suit;  and,  in  either  class  of  cases, 
proof  of  user  is  aided  by  an  admission  of  the  fact  of  incor- 
poration, and  is  dispensed  with  by  circumstances  which 
equitably  estop  the  party  from  denying  what  he  has  ad- 
mitted. 

24.  Materiality  of  Date. 

The  evidence  should  be  viewed  not  merely  with  reference 
to  the  time  of  commencement  of  suit,  in  which  regard  it 
only  affects  the  power  to  appear  as  a  party  on  the  record, 
but  also  with  reference  to  time  when  the  corporate  power 
is  alleged  to  have  been  exercised,  in  which  regard  it  may  af- 
fect the  substance  of  the  cause  of  action.  For  either  pur- 
pose the  mode  of  proof  is  the  same.  If  the  existence  of  in- 
corporation before  the  exercise  of  corporate  power  is  shown, 
there  is  a  presumption  of  law  that  the  incorporation  con- 
tinued, unless  evidence  tending  to  show  the  contrary  is  given; 
but  if  existence  at  a  later  period  only  is  shown,  there  is  no 
presumption,  without  other  evidence,  that  incorporation  was 
had  before  the  exercise  of  the  power.66  In  ordinary  cases  it 
is  well  to  present  testimony  to  user  covering,  in  a  general 
way,  the  whole  period  involved. 

25.  Misnomer. 

An  error  in  the  corporate  name  used  on  the  record  goes 

proving  that  it  was  in  all  respects  charter  is  put  in  evidence  does  not 

a  perfectly  legal  corporation.    The  -raise  a  presumption  of  law  that 

corporation  is  entitled  to  recover  there  was  no  prior  incorporation, 

on  the  issue  presented  by  that  plea,  It  is  at  most  a  question  for  the 

on  making  proof  that  it  had  a  de  jury.    Bow  v.  Allenstown,  34  N.  H. 

facto  existence.     Concord   Apart-  351. 

ment   House   Co.    v.   Alaska   Re-          The   presumption  of  regularity 

frigerator  Co.,  78  111.  App.  682.  extends  to  the  proceeding  in  the  or- 

M  In  the  case  of  a  municipality,  ganizations  of  corporations.    Pack- 

if  the  date  of  first  incorporation  ard  v.   Old   Colony   R.    Co.,   168 

is  material,  the  mere  fact  that  a  Mass.  92,  46  N.  E.  Rep.  433. 


ACTIONS   BY   AND    AGAINST   CORPORATIONS 


111 


only  in  abatement,67  and  in  modern  practice  is  freely  amend- 
able in  furtherance  of  justice,  on  proof  of  the  true  name;  M 
and  where  there  is  an  error  in  the  name  used  in  a  deed  or 
will,  the  corporation  should  appear  hi  its  true  name  and 
aver  that  the  instrument  intended  them  by  using  the  wrong 
name.69  And  the  instrument  produced  by  the  corporation, 
with  prima  fade  evidence  of  delivery  to  them,  is  competent 
evidence  against  the  grantor  and  those  claiming  under  him, 
that  the  corporation  were  known  and  intended  by  the  name 
used.70 

26.  Fraud,  Forfeiture,  or  Non-user. 

Upon  the  mere  question  of  corporate  existence^it  is  not 
competent  (except  in  some  cases  where  strict  proof  is  re- 
quired) to  give  evidence  that  the  charter  was  obtained  by  a 
fraud,  not  infecting  the  very  cause  of  action  itself,  nor  that 
by  misuser  or  non-user  the  corporations  have  become 
amenable  to  a  forfeiture  of  their  franchises,71  nor  even  that 


67  2  N.  Y.  R.  S.  549,  §  14;  Chris- 
tian   Soc.    in    Plymouth    v.    Ma- 
comber,  3  Mete.  (Mass.)  235. 

If  "Globe  Investment  Com- 
pany" is  sued  in  the  name  of  "The 
Globe  Investment  Company"  the 
variance  is  immaterial.  Clifford 
v.  Thun,  74  Neb.  831,  104  N.  Y. 
Rep.  1052. 

To  the  same  effect  Western 
Bank,  etc.,  Co.,  v.  Ogden,  42  Tex. 
Civ.  A.  465,  93  S.  W.  Rep.  1102. 

68  Bank  of  Havana  v.  Magee,  20 
N.  Y.  355,  afH'g  Bank  of  Havana 
v.  Wickham,  7  Abb.  Pr.  134.    Com- 
pare Hallett  ».  Harrower,  33  Barb. 
537.      For    a   strict    rule    against 
misnomer,    where    a    corporation 
proceeds  under  statute  adversely 
to    common    right,    see    Glass    v. 
Tipton,  etc.,  Co.,  1  Withr.  Corp. 
Cas.  377,  s.  c.,  32  Ind.  376.     Com- 


pare Bank  of  Commerce  v.  Mudd, 
32  Mo.  218. 

69  See  will  cases  in  chapter  on 
Actions  By  and  Against  Heirs,  etc. 

In  an  action  brought  by  the  as- 
signee of  a  corporation  a  letter 
addressed  by  the  defendant  to  the 
corporation  in  its  corporate  name 
is  evidence  on  which  it  can  be 
found  in  the  absence  of  any  evi- 
dence to  the  contrary  that  the 
plaintiff's  assignee  was  a  corpora- 
tion. Stauffer  v.  Koch,  225  Mass. 
525,  114  N.  E.  Rep.  750. 

70  Mayor,    etc.,    v.    Blamire,    8 
East,  493. 

"Nor  even  that  the  corpora- 
tions were  not  organized  within 
the  time  limited  by  the  charter. 
County  of  Macon  v.  Shores,  97 
U.  S.  (7  Otto)  272. 

Until  a  forfeiture  of  a  charter 


112  ACTIONS   BY  AND   AGAINST   COKPORATIONS 

there  has  -been  such  a  cessation  of  business  as  had  been 
previously  declared  by  statute  should  have  the  effect  to 
terminate  the  corporate  powers,  nor  that  there  has  been  a 
voluntary  dissolution  without  judicial  proceedings.72 

H.  CORPORATE  POWERS  IN  GENERAL 

27.  New  Powers. 

The  acceptance  of  an  apparently  beneficial  grant  of  addi- 
tional power,  subsequent  to  the  charter,  may  be  inferred  as 
against  the  body  as  a  whole,  and  equally  in  its  favor  where 
strict  proof  is  not  required,  from  slight  evidence  of  acceptance 
or  acquiescence  by  a  majority  of  the  corporators  or  of  the 
directors,  as  the  case  may  require;  in  some  form  such  evi- 
dence is  requisite;  and  even  then  it  does  not  necessarily 
prove  the  act  to  be  binding  on  a  particular  associate.73 

28.  Distinction  between  Original  Powers  of  Corporation 
and  Delegated  Powers  of  Officers. 

The  rules  of  pleading  and  evidence  both  recognize  the 
distinction  between  the  original  powers  of  a  corporation, 
which  are  such  as  are  expressly  conferred  or  reasonably 
implied  in  the  statute,  viewed  in  relation  to  the  require- 
ments and  usages  of  the  business  for  which  incorporation  was 
granted,  and  the  authority  to  act  in  the  exercise  of  such 

is  judicially  decreed,  neither  the  73Ang.   &  A.   63-69,    §§81-86; 

forfeiture  nor  the  cause  of  it  can  Railway  Company  v.  Allerton,  18 

be  inquired  into  in  another  suit,  Wall.  233. 

nor  can  the  existence  of  the  cor-  Where  it  clearly  appears   that 

poration   be   questioned   incident-  one  corporation  is  merely  a  creature 

ally    or    collaterally.      Bloch    v.  of  another  the  latter  holding  all 

O'Conner  Mining  &  Mfg.  Co.,  129  the  stock  of  the  former,  thereby 

Ala.  528,  29  So.  Rep.  925.  controlling  it  as  effectively  as  it 

72  2  Abb.  N.  Y.  Dig.  339-341;  does  itself,  it  will  be  treated  as  the 

Ang.  &  A.  on  Corp.,  §  636,  and  practical  owner  of  the  corporation, 

cases  cited.    Receivership  does  not  when  necessary  for  the  purpose  of 

necessarily   bar   suit.     Willitts   v.  doing   justice.     United    States   v. 

Waite,  25  N.  Y.  577;  and  see  20  United  Shoe  Machinery  Co.,  234 

Wall.  1.  Fed.  Rep.  127. 


113 


power  which  is  conferred  by  the  corporation  or  managing 
board  on  its  officers  and  agents.  Under  an  allegation  merely 
of  want  of  corporate  power  to  do  the  act,  evidence  that  an 
act  the  corporation  had  power  to  do  was  done  by  officers 
whom  the  board  had  not  authorized,  is  inadmissible,74  except 
by  amendment;  and  under  an  allegation  merely  that  the 


740gden  v.  Raymond,  5  Bosw. 
16,  3  Abb.  Ct.  App.  Dec.  396. 

Acts  taken  by  corporations  are 
presumed,  in  the  absence  of  evi- 
dence to  the  contrary,  to  be  within 
either  the  express  or  implied  powers 
of  the  corporation.  Heinz  v.  Na- 
tional Bank  of  Commerce,  237  Fed. 
Rep.  942,  150  C.  C.  A.  592. 

A  corporation  has  no  natural 
rights,  such  as  an  individual  or 
partnership  has,  and  if  a  power  is 
claimed  for  it,  the  words  giving 
the  power  or  from  which  it  is 
necessarily  implied,  must  be  found 
in  the  charter,  or  it  does  not  exist. 
Citizens'  Electric  lUuminating  Co. 
v.  Lackawanna,  etc.,  R.  Co.,  255 
Pa.  176,  99  Atl.  Rep.  465. 

An  ordinary  business  corpora- 
tion has  no  power  to  become  surety 
for  another  corporation  or  individ- 
ual, but  where  such  acts  are  inci- 
dental to  the  business  of  the  com- 
pany and  the  proper  management 
thereof,  and  done  in  good  faith, 
they  are  not  ultra  vires.  Edwards  v. 
International  Pavement  Co.,  227 
Mass.  206,  116  N.  E.  Rep.  266. 

The  general  rule  is  that  with- 
out express  authority  conferred 
by  the  corporation  articles,  no 
corporation  has  the  power  by  any 
form  of  contract  or  indorsement 
to  become  a  surety  or  guarantor 
for  another.  Miller  v.  Northern 


Brewery  Co.,  242  Fed.  Rep. 
164. 

.  An  implied  power  can  only  be 
such  power  as  is  necessary  to  en- 
able a  corporation  to  carry  out 
the  power  expressly  granted  it  so 
as  to  effect  the  purpose  for  which 
it  was  created.  Citizens'  Electric 
Illuminating  Co.  v.  Lackawanna, 
etc.,  R.  Co.,  255  Pa.  176,  99  Atl. 
Rep.  465. 

A  State  cannot  authorize  a  cor- 
poration to  exercise  its  franchise 
in  other  States.  A  corporation 
has  no  existence  beyond  the  bound- 
aries of  the  State  of  its  creation, 
or  power  to  perform  strictly  cor- 
porate acts  outside  of  it.  Ryerson 
v.  Shaw,  277  111.  524,  115  N.  E. 
Rep.  650. 

A  corporation  can  exercise  in 
another  jurisdiction  only  such  pow- 
ers as  are  set  forth  in  its  articles 
of  incorporation,  but  the  articles 
are  not  void  because  they  do  not 
authorize  the  corporation  to  do 
business  in  the  State  of  its  creation. 
Troy  &  North  Carolina  Gold  Min- 
ing Co.  v.  Snow  Lumber  Co. 
(N.  C.),  92  S.  E.  Rep.  494. 

In  the  absence  of  constitutional 
or  statutory  prohibition,  corpora- 
tions have  inherent  power  to  buy, 
to  sell,  and  to  retire  their  own  stock. 
Sanford  v.  First  Nat'l  Bank,  238 
Fed.  Rep.  298,  151  C.  C.  A.  314. 


114  ACTIONS   BY   AND    AGAINST   CORPORATIONS 

officer  was  not  authorized  by  the  corporation,  evidence 
merely  that  the  act  was  not  within  the  corporate  power 
would  be  equally  objectionable.  But  the  variance  must  be 
substantial  and  misleading  to  have  the  effect  to  exclude  the 
evidence.  The  proper  authority  to  the  officer  or  agent  by 
whose  hand  the  act  is  shown  to  have  been  done,  may  be 
proved  under  a  general  allegation  that  the  corporation  did 
the  act,75  and  under  an  allegation  of  authority  hi  the  agent, 
evidence  of  subsequent  ratification  equivalent  in  effect  is 
admissible.76  Where  the  allegation  is  merely  general,  that 
the  corporation  did  the  act,  a  denial  of  the  act  admits  evi- 
dence of  the  want  of  authority.77 

29.  Evidence  of  Delegation  of  Power. 

To  charge  a  corporation  upon  the  act  of  an  officer  or  agent, 
it  must  be  shown  directly  or  presumptively,  either  that  the 
act  was  performed  while  in  the  discharge  of  his  ordinary  duty 
in  the  Usual  course  of  business,  and  was  within  the  general 
scope  and  apparent  sphere  of  such  duty,  or  that  it  was  ex- 
pressly authorized,  or  that  it  was  performed  with  the  knowl- 
edge and  implied  assent  of  the  directors  or  of  the  corporation 
or  its  authorized  officers,  or  was  subsequently  ratified  by 
them.78 

"Partridge  v.  Badger,  25  Barb,  accommodation  endorsements,  the 

146;  Nelson  v.  Eaton,  26  N.  Y.  burden  rests  on  the  other  party  to 

410.     An  allegation  that  a  con-  show    that    the    corporation    had 

tract  was  made  by  the  president  power  to  make  such  endorsements, 

and  directors  of  the  company,  is  A.  D.  Farmer  &  Son  Type-Fdy. 

equivalent  to  saying  that  it  was  Co.    v,    Humboldt   Pub.    Co.,    27 

made    by    the    corporation.      In-  N.  Y.  Misc.  314,  57  N.  Y.  Supp. 

surance  Co.  of  N.  A.  v.  McDowell,  821. 

50111. 120,  s.c.,lWithr.  Corp.  Cas.  "Baleman    v.     Midwales    Co., 

438;  Soulby  v.  Smith,  3  Barn.  &  L.  R.  1  C.  P.  499. 

Ad.  929.    Compare  65  N.  Y.  278.  78"First  Nat.  Bank  v.  Ocean  Nat. 

7«Hoyt  v.  Thompson,  19  N.  Y.  Bank,  60  N.  Y.  290,  and  cases 

207.  cited. 

Where  there  is  no  evidence  show-  It    is    competent    evidence    in 

big  that  the  cashier  of  a  corpora-  proving  the  authority  of  an  agent 

tion  was  authorized  to  bind  it  by  of  a  corporation  to  show  that  the 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


115 


Where  there  was  a  consideration,  and  not  an  absolute  want 
of  authority  in  the  officers  to  do  any  act  of  the  nature  of  that 
in  question,  but  only  a  want  of  authority  in  the  particular 
instance,  he  who  would  impeach  the  power  must  show,  either 
by  direct  evidence  or  presumptively,  that  the  want  of  au- 
thority was  known  to  the  other  party  as  well  as  to  the 
officers.79 


agent  was  personally  directing  the 
work  which  was  concededly  being 
done  by  the  corporation.  Alabama 
Securities  Co.  v.  Dewey,  156  Ala. 
530,  47  So.  Rep.  55. 

"A  stockholder  is  not  an  agent 
of  the  corporation  in  which  he 
owns  a  share.  He  has  no  legal 
title  to  any  of  its  property." 
Rensselaer,  etc.,  R.  Co.  v.  Irwin, 
239  Fed.  Rep.  739. 

The  delivery  to  the  defendant  of 
a  corporate  check  for  a  personal 
obligation  puts  the  defendant  upon 
inquiry  to  ascertain  whether  the 
making  of  the  check  was  author- 
ized. Martindale  v.  DeKay,  166 
N.  Y.  Supp.  405;  J.  B.  Kepner 
Co.,  v.  Hutton,  166  N.  Y.  Supp. 
408. 

Where  there  is  no  proof  that  a 
corporation  did  not  know  of  the 
declarations  and  acts  of  its  agent, 
it  is  a  fair  and  warranted  presump- 
tion that  it  had  such  knowledge. 
Swift  v.  Matthews  Engineering 
Co.,  178  App.  Div.  201,  165  N.  Y. 
Supp.  136. 

A  corporation  cannot  exist  be- 
fore its  charter  has  been  granted, 
and  consequently  cannot  be  a 
principal  in  any  transaction  or  have 
agents.  Powers  v.  Brunswick- 
Balke-Collender  Co.,  19  Ga.  App. 
706,  91  S.  E.  Rep.  1062. 


79  See  1  Redf  on  Rys.  603  (4). 

Letters  written  by  the  officer 
of  a  corporation  apparently  within 
the  scope  of  his  duties  and  perti- 
nent to  the  issue  under  investiga- 
tion, are  admissible  in  evidence 
against  the  corporation.  Dawson 
Paper  Shell  Pecan  Co.  v.  Monte- 
zuma  Fertilizer  Co.,  19  Ga.  App. 
42,  90  S.  E.  Rep.  984. 

There  is  a  presumption  of  law, 
where  the  contrary  does  not  ap- 
pear, that  one  occupying  the  posi- 
tion of  secretary  and  treasurer  of  a 
corporation  is  a  proper  officer  to 
sign  for  the  corporation;  and  the 
.  burden  is  upon  the  corporation  to 
show  the  contrary.  Dawson  Paper 
Shell  Pecan  Co.  v.  Montezuma 
Fertilizer  Co.,  19  Ga.  App.  42, 
90  S.  E.  Rep.  984. 

A  corporation  is  chargeable  with 
the  presumptive  knowledge  of  one 
who  acts  for  it  in  the  incorporation 
of  another  company  and  is  es- 
topped from  denying  the  right  of 
the  latter  to  sue  because  of  any 
irregularity  in  its  organization. 
Lindenberger  Cold  Storage  &  Can- 
ning Co.  v.  J.  Lindenberger,  Inc., 
235  Fed.  Rep.  542. 

Where  the  evidence  showed  that 
a  person  was  in  sole  charge  of  a  cor- 
poration place  of  business  during 
its  business  hours,  that  he  dealt 


116 


ACTIONS   BY   AND    AGAINST    CORPORATIONS 


30.  General  Presumption  as  to  Corporate  Acts. 

The  same  presumptions,  whether  of  law  drawn  by  the 
court,  or  of  fact,  allowed  to  be  drawn  by  a  jury,  arise  in  re- 
spect to  the  conduct  of  corporations,  and  their  officers  and 
agents,  as  in  respect  to  that  of  individuals  and  their  agents, 
except  where  statutes  impose  a  different  rule.80  It  will  be 
presumed  that  they  conduct  then"  operations,  as  to  details, 
substantially  upon  the  same  principles  and  in  the  same  man- 
ner as  individuals  engaged  in  like  business.81  The  principle  is 


with  a  customer,  received  money 
from  him,  and  gave  receipt  for 
same,  it  is  presumed  that  he  is  an 
agent  of  the  corporation  with 
authority  to  act  for  it.  Sherman 
v.  Auto  Bankers,  Inc.,  164  N.  Y. 
Supp.  698. 

Where  a  person  enters  into  an 
agreement  with  a  corporation  and 
submits  to  a  personal  examination 
pursuant  to  such  agreement,  there 
is  an  implied  contract  that  the 
patient  will  be  treated  not  only 
skillfully  but  decently,  respect- 
fully and  courteously  and  the  cor- 
poration is  answerable  for  the  fail- 
ure of  an  employee  while  acting 
in  the  course  of  his  employment 
to  conduct  himself  as  the  corpora- 
tion impliedly  contracted  that  he 
would  conduct  himself.  Stone  v. 
Eisen  Co.,  219  N.  Y.  205, 114  N.  E. 
Rep.  44. 

8(1  Bank  of  the  IT.  S.  v.  Dandridge, 
12  Wheat.  70;  s.  P.,  Union  Bank  v. 
Ridgely,  1  Har.  &  G.  324. 

A  general  superintendent  of  a 
mining  corporation  is  clothed  with 
large  specific  as  well  as  discretion- 
ary powers,  and  it  is  a  reasonable 
inference  to  conclude  that  he  is 
acting  within  the  scope  of  his  pow- 


ers when  he  orders  the  nursing  and 
caring  for  an  injured  miner  at  the 
expense  of  the  corporation.  Mt. 
Wilson  Gold,  etc.,  Mining  Co.  v. 
Burbridge,  11  Colo.  App.  487,  53 
Pac.  Rep.  826. 

81  Mead  v.  Keeler,  24  Barb.  20. 

The  general  rule  is  that  the  owner 
of  all  the  capital  stock  of  a  corpo- 
ration does  not  own  the  property 
of  the  corporation.  Venner  v.  N. 
Y.  Cent.  &  H.  R.  R.  Co.  (App. 
Div.),  164  N.  Y.  Supp.  626. 

One  who  owns  the  majority  of 
the  stock  of  a  corporation  sustains 
a  fiduciary  relation  to  it.  His 
power  to  control  and  direct  the 
action  of  the  corporation  consti- 
tutes him  the  actual,  if  not  the 
technical  trustee  for  the  holders  of 
the  minority  of  the  stock.  Alaska 
Juneau  Gold  Mining  Co.  v.  Ebner 
Gold  Mining  Co.,  239  Fed.  Rep. 
638,  152  C.  C.  A.  472. 

In  the  absence  of  proof  to  the 
contrary  it  will  be  presumed  that 
the  agent  of  a  corporation  who  ex- 
ecuted a  chattel  mortgage  in  its 
behalf  had  authority  to  do  so  and 
that  he  lawfully  and  properly  ex- 
ecuted the  chattel  mortgage. 
American  Exchange  National  Bk. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


117 


well  settled  that  dealings  which  are  not  apparently  beyond 
the  scope  of  the  incorporation,  and  are  not  expressly  or  by 
necessary  implication  forbidden  by  law,  are  presumed  to  be 
valid  until  the  contrary  is  shown; 82  and  the  later  decisions  of 
the  highest  authority  go  far  to  support  the  rule,  that  any 
formal  contract  of  a  corporation,  not  expressly  or  by  neces- 
sary implication  forbidden  or  illegal,  is  valid  against  the 
corporation,  when  there  is  ground  either  for  an  equitable 
estoppel,  or  for  holding  that  the  parties  are  not  in  pari 
delicti  in  exceeding  the  limits  of  the  law.83  Illegality  is  not 


v.  Ward,  111  Fed.  Rep.  782,  49  C. 
C.  A.  611,  55  L.  R.  A.  356. 

82  Green's  Brice's  Ultra  V.  40, 
n.;   and   see  6   Moak's  Eng.   17, 
n. 

Where  officers  of  a  corporation 
executed  a  deed,  and  there  was  no 
repudiation  of  the  authority,  and 
the  stockholders  and  officers  knew 
all  about  the  transaction,  the  au- 
thority will  be  conclusively  pre- 
sumed. West  Seattle  Land  &  Impr. 
Co.  v.  Novelty  Mill  Co.,  31  Wash. 
435,  72  Pac.  Rep.  69. 

83  Bissell  v.  Mich.  S.  &  N.  I.  R. 
R.  Co.,  22  N.  Y.  258;  Riche  ».  Ash- 
bury  Rw.  Carr.  Co.,  L.  R.  9  Exch. 
224;  7  H.  of  L.  653;  Green's  Ultra 
V.  379,  n.    A  part  of  the  apparent 
conflict  in  the  hostile  authorities 
on  this  subject  is  removed  by  dis- 
tinguishing between  cases,  1,  where 
the  objection  was  raised  by  the 
company  to  avoid  its  liability  upon 
the   act   in    question,    upon    the 
ground  that  the  act  was  foreign 
to  the  scope  of  incorporation;  and, 
2,  where  the  objection  from  the 
same  source  was  to  an  act  in  excess 
of  the  officer's  authority;  and,  3, 
where  the  objection  was  raised  by 


a  dissenting  shareholder,  or  by  a 
creditor,  that  the  company  could 
not  part  with  its  funds  for  a  pur- 
pose foreign  to  the  scope  of  incor- 
poration. 

A  note,  signed  by  the  proper  of- 
ficers of  a  corporation,  and  with 
the  seal  attached,  is  prima  fade 
evidence  of  the  authority  of  the 
officers  and  due  execution  by  them. 
Mills  v.  Boyle  Mining  Co.,  132 
Cal.  95,  64  Pac.  Rep.  122. 

A  corporation  will  not  be  per- 
mitted, after  allowing  one  to  act 
as  its  secretary,  and  causing  its 
records  to  be  authenticated  by 
him  as  its  secretary,  to  object  to 
the  regularity  of  his  appointment, 
or  to  repudiate  its  obligations 
signed  by  him  under  the  direction 
of  its  board  of  directors.  Barrell 
v.  Lake  View  Land  Co.,  122  Cal. 
129,  54  Pac.  Rep.  594. 

Where  the  agent  who  made  the 
contract  for  a  corporation  acted 
beyond  the  scope  of  his  authority, 
and  the  corporation  had  not  re- 
ceived the  fruits  of  his  act,  it  is 
not  estopped  from  denying  his  au- 
thority to  bind  it  thereby.  Red 
Cross  Protective  Soc.  v.  Wayte, 


118 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


presumed  of  the  action  of  a  corporation.84   Acts  done  by  them 
which  presuppose  the  existence  of  other  facts  to  make  them 


171  Fed.  Rep.  643,  96  C.  C.  A. 
126. 

Where  a  director  purchases  any- 
thing of  value  from  the  corpora- 
tion he  serves,  the  sale  must  be 
fairly  and  openly  made  and  for  a 
fair  consideration.  Wing  v.  Dil- 
ingham,  239  Fed.  Rep.  54,  152  C. 
C.  A.  104. 

A  complaining  stockholder  must 
first  seek  relief  through  the  direct- 
orate or  controlling  authorities 
of  the  corporation  before  he  can 
apply  to  the  courts.  Winstead  v. 
Hearne  Bros.  &  Co.  (N.  C.),  92 
S.  E.  Rep.  613. 

A  shareholder's  right  to  prose- 
cute a  case  in  the  interest  of  a  cor- 
poration against  the  directors  does 
not  exist  until  after  a  reasonable 
demand  has  been  made  upon  the 
directors  to  act  and  they  have  re- 
fused to  do  so.  Bartlett  v.  N.  Y., 
N.  H.  &  H.  R.  R.  Co.,  226  Mass. 
467,  115  N.  E.  Rep.  976. 

Where  one  corporation  deals 
through  another,  which  it  privately 
owns  and  directs,  and  in  effect 
makes  a  sale  to  itself,  the  burden 
of  proving  the  fairness  of  the  trans- 
action and  the  adequacy  of  price 
devolves  upon  it.  Pennsylvania 
Canal  Co.  v.  Brown,  235  Fed.  Rep. 
669,  149  C.  C.  A.  89. 

Where  a  corporation  is  owned 
and  controlled  by  a  single  person 
(either  a  natural  or  an  artificial 
person)  the  rule  that  the  corpora- 
tion and  the  shareholders  have  a 
separate  entity  and  existence  can 
never  be  made  use  of  for  purposes 


of  evading  responsibility,  or  as  a 
means  of  destorting  or  hiding  the 
truth,  or  of  covering  up  transac- 
tions. In  such  cases,  the  presump- 
tion that  knowledge  of  facts  and 
circumstances  affecting  the  inter- 
ests of  the  stockholders  of  a  cor- 
poration cannot  be  imputed  to  the 
corporation  itself  has  no  applica- 
tion, unless  the  interests  of  the 
stockholders  and  the  corporation 
are  adverse,  but,  on  the  contrary, 
the  presumption  is  otherwise  where 
such  interests  are  not  adverse. 
Searchlight  Horn  Co.  v.  American 
Graphophone  Co.,  240  Fed.  Rep. 
745. 

84  Thus  power  to  acquire  a  pat- 
ent may  be  inferred  from  the  de- 
scriptive title  of  the  corporation. 
Dorsey  Harvester  Rake  Co.  v. 
Marsh,  6  Fish.  Pat.  Gas.  393,  cit- 
ing Blanchard's  Gunstock  Turning 
Factory  v.  Warner,  1  Blatchf.  271. 

It  is  not  necessary  to  allege  the 
authorization  of  any  act  charged 
to  a  corporation  in  a  pleading. 
It  is  sufficient  to  allege  that  the 
act  in  question  was  done  by  the 
corporation,  and  then  prove  that 
it  was  done  by  constituted  author- 
ity. Grand  Rapids  &  I.  Ry.  Co. 
v.  Jaqua  (Ind.  App.),  115  N.  E. 
Rep.  73. 

One  dealing  with  an  officer  or 
agent  of  a  foreign  corporation  can- 
not be  presumed  to  know  that  the 
corporation  has  not  complied  with 
the  laws  of  the  State.  Ryerson  v. 
Shaw,  277  111.  524,  115  N.  E.  Rep. 
650. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


119 


legal,  are  presumptive  proof  of  such  other  facts; 85  and  the 
burden,  both  of  allegation  86  and  of  proof,87  is  on  the  party 
impeaching  the  transaction,  to  show  that  the  circumstances 
giving  validity  to  the  exercise  of  the  power  did  not  exist.88 


••  Nelson  v.  Eaton,  26  N.  Y.  410, 
s.  c.(  16  Abb.  Pr.  113,  rev'g  7  Abb. 
Pr.  305.  This  is  a  presumption  of 
law,  and  may  be  drawn  by  the 
court  without  submission  to  the 
jury.  Thus  if  a  loan  by  a  corpo- 
ration would  be  valid  if  made  from 
one  fund,  but  invalid  if  made  from 
another,  the  presumption  is  that 
it  was  made  from  the  former. 
Farmers'  Loan  &  Trust  Co.  v. 
Clowes,  3  N.  Y.  470.  Or  if  the  ac- 
quiring, holding  and  conveying  of 
real  property  would  be  valid  under 
some  circumstances  or  for  some 
purposes,  but  not  otherwise,  the 
presumption  is  that  it  was  valid. 
Farmers'  Loan  &  Trust  Co.  v.  Cur- 
tis, 7  N.  Y.  466;  Chautauqua  Co. 
Bank  v.  Risley,  19  N.  Y.  369;  De 
Groff  v.  Am.  Linen  Thread  Co., 
21  N.  Y.  124,  rev'g  24  Barb. 
375. 

In  determining  whether  a  given 
act  is  within  the  express  powers 
of  a  corporation,  the  judgment  and 
actions  of  the  directors  and  stock- 
holders have  no  legal  weight  or 
bearing,  as  to  implied  powers  their 
judgment,  while  not  conclusive,  is 
entitled  to  consideration.  Heinz 
v.  National  Bank  of  Commerce, 
237  Fed.  Rep.  942,  150  C.  C.  A. 
592. 

Where  a  director  acquires  land 
from  the  corporation  he  serves,  he 
is  charged  with  knowledge  as  to 
how  his  corporation  acquired  it. 


Wing  v.  Dillingham,  239  Fed.  Rep. 
54,  152  C.  C.  A.  104. 

The  rights  of  stockholders,  in  a 
corporation  formed  under  the  laws 
of  another  State  must  be  deter- 
mined by  the  laws  of  that  State. 
McMillen  v.  Lamb,  166  N.  Y. 
Supp.  656. 

86  Howard  v.  Boorman,  17  Wise. 
459. 

"Cases  cited  in  last  note  but 
one.  And  these  presumptions  are 
applied  to  foreign  corporations. 
N.  Y.  Floating  Derrick  Co.  v.  N.  J. 
Oil  Co.,  3  Duer,  648;  Star  Brick 
Co.  v.  Ridsdale,  36  N.  J.  L.  229. 

The  burden  rests  upon  the  party 
seeking  to  charge  a  corporation 
upon  a  contract  made  by  one  of 
its  officers  to  prove  all  the  facts 
necessary  to  establish  its  validity. 
Gilbert  v.  Seatco  Mfg.  Co.,  98  Fed. 
Rep.  208. 

Where  there  is  testimony  tend- 
ing to  show  that  the  act  of  the  sec- 
retary of  a  corporation  in  endors- 
ing a  note  was  done  with  authority, 
the  burden  rests  upon  the  corpo- 
ration to  show  that  the  act  was  not 
authorized  or  ratified,  either  by 
affirmative  action  or  by  receiving 
the  benefits  of  the  transaction. 
Karsch  v.  Pettier,  etc.,  Mfg.,  etc., 
Co.,  82  N.  Y.  App.  Div.  230,  81 
N.  Y.  Supp.  782. 

88  And  the  better  opinion  is,  that 
if  the  contract  is  only  collaterally 
in  question,  and  the  party  impeach- 


120  ACTIONS   BY  AND   AGAINST   CORPORATIONS 

This  rule,  however,  relates  to  the  legality  of  the  power,  and 
does  not  supply  the  want  of  evidence  that  the  officer  or  agent 
who  assumed  to  exercise  the  power  was  authorized  by  the 
corporation  to  do  so.89 

HI.  CONTRACTS  BY  A  CORPORATION 

31.  Implied  Promises. 

When  a  corporation  acts  within  the  scope  of  the  legitimate 
objects  of  its  institution,  all  parol  contracts  made  by  its 
authorized  agents  are  express  promises  by  the  corporation; 
and  upon  all  duties  imposed  upon  them  by  law,  and  upon  all 
benefits  conferred  at  their  request,  the  law  implies  the  same 
promises  of  the  principal  as  in  the  case  of  an  individual.90 
To  sustain  an  action  for  services,  or  goods  sold,  or  the  like,  it 
is  not  necessary  to  show  that  the  directors,  at  a  formal  meet- 
ing, authorized  or  ratified  the  employment  or  order.  It  is 
enough  to  show  either,  1,  that  the  officer  or  agent  who  made 
the  engagement  did  so  within  the  scope  of  his  duty  or  au- 
thority; or,  2,  that  the  engagement  was  performed  with  the 
knowledge  of  the  directors,  and  they  received  its  benefit 

ing  it  is  not  the  one  sought  to  be  hold  certain  stocks  lawfully,  the 
charged  on  it,  he  cannot  do  even  burden  is  on  him  to  show  that  the 
that.  Farmers',  etc.,  Bank  v.  De-  stocks  were  illegally  held,  and  in 
troit,  etc.  R.  R.  Co.,  17  Wise.  372,  the  absence  of  such  proof  the  court 
DIXON,  J.  Every  corporation  is  will  assume  the  action  of  the  cor- 
presumed  to  have  power  to  pur-  poration  is  legal.  Burden  v.  Bur- 
chase  and  hold  real  estate,  and  if  den,  159  N.  Y.  287,  54  N.  E.  Rep. 
there  is  anything  in  its  charter,  or  17. 

the  business  in  which  it  is  engaged,  89  See   Partridge   v.   Badger,   25 

or  the  law  under  which  it  is  organ-  Barb.  146. 

ized,  abridging  this  power,  it  must  Ordinarily  the  burden  rests  upon 

be  shown  affirmatively  by  the  per-  one  seeking  to  hold  a  corporation 

son  assailing  its  title,  else  a  convey-  liable  on  a  contract  to  show  that 

ance  to  it  will  be  deemed  valid,  the  execution  of  the  contract  was 

Granite  Gold  Mining  Co.  v.  Ma-  properly  authorized.    Western  De- 

ginness,  118  Cal.  131,  50  Pac.  Rep.  velopment,  etc.,  Co.  v.  Caplinger, 

269.  86  Ark.  287,  110  S.  W.  Rep.  1039. 

Where  plaintiff  makes  the  con-  M  Dunn   v.   Rector   of   St.   An- 

tention  that  a  corporation  did  not  drews,  14  Johns.  118. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  121 

without  objection.91  The  law  raises  the  same  presumption  as 
to  assent,  etc.,  against  corporation  as  against  natural  per- 
sons; and  in  such  a  case,  where  the  corporation  have  enjoyed 
performance,  they  will  be  presumed  to  have  ratified  the  con- 
tract, and  will  not  be  permitted  to  deny  the  authority  of  the 
agent.92 

32.  Simple  Contracts  in  Writing. 

The  unsealed  contracts  of  corporations  are  often  made  by 
the  adoption  of  a  resolution,  communicated  to  and  accepted 
by  the  other  party.  A  contract  in  this  form  is  a  sufficient 
memorandum  to  satisfy  the  statute  of  frauds  as  against  the 
corporation,  if  the  minutes  of  the  corporation,  signed  by  the 
clerk,  contain,  either  expressly  or  hi  part  by  reference  to 
other  documents,  the  terms  agreed  on.93  Where  the  contract 
is  made  in  such  a  mode,  the  writing  should  be  deemed  within 
the  rule  requiring  it  to  be  produced  as  the  best  evidence  of  its 
contents,  or  accounted  for; 94  and  the  rule  forbidding  parol 

91  Hooker  v.  Eagle  Bank,  30  N.      subsequent    silence    and    acquies- 
Y.  83,  86  Am.  Div.  351,  and  cases      cence   in   the   public   use.     West 
cited.  End  v.  Eaves,   152   Ala.  334,  44 

Where  the  president  and  secre-  So.  Rep.  588. 

tary  of  a  corporation  execute  a  93  Argus  v.  Mayor,  etc.,  of  Al- 

contract  in  behalf  of  the  company,  bany,  55  N.  Y.  495,  affi'g,  in  effect, 

which  is  regular  on  its  face  and  not  7  Lans.  264;  and  see  22  Ohio  St.  451. 

shown  to  be  outside  of  the  regular  The  signature  of  the  mayor  of  a 

business  of  the  corporation,  it  is  municipal  corporation  to  an  ordi- 

prima  facie  evidence  that  it  was  nance   containing  a  contract  is  a 

executed  with  authority,  and  those  sufficient    memorandum,    and    its 

who  deny  the  authority  take  upon  acceptance  by  the  party  contracted 

themselves  the   burden  of  estab-  with  closes  the  contract.    Aurora 

lishing  their  claim.    Neosho  Valley  Water  Co.  v.  Aurora,  129  Mo.  540, 

Inv.  Co.  v.  Hannum,  10  Kan.  App.  31  S.  W.  Rep.  946. 

499,  63  Pac.  Rep.  92.  "Whitford  t>.  Tutin,   10  Bing. 

92  Fister  v.  La  Rue,  15  Barb.  323.  295.     Contra,  where  the^proposal 
Where  the  president  of  a  cor-  does  not  contain  all  the  terms,  and 

poration    dedicates    lands    of   the  is  modified  on  a  parol  acceptance, 

corporation  to  a  city  for  a  public  Pacific  Works  v.  Newhall,  34  Conn, 

street,  his  authority  to  do  so  will  '  67. 
be  inferred  from  the  corporation's          Where  a  resolution  of  a  corpora- 


122  ACTIONS   BY  AND   AGAINST  CORPORATIONS 

evidence  to  vary  a  writing,  as  between  the  parties  to  it,  ap- 
plies. Where  a  formal  instrument  is  executed  without  seal, 
such  as  an  assignment,  or  a  note  or  bill,  there  must  be  some 
evidence  of  the  authority  of  the  person  executing  it.  To 
prove  a  sale  which  is  not  a  transaction  in  the  ordinary  course 
of  business  of  the  corporation — e.  g.,  an  executory  contract  to 
sell  bonds  of  the  company,95  or  to  cancel  a  mortgage  without 
consideration,96  the  authority  of  the  officers  will  not  be  pre- 
sumed. A  power  of  attorney  from  the  president  is  not 
enough.  The  president's  authority  must  be  shown.  If  there 
is  a  board  of  directors,  authority  from  them  is  presumptively 
enough.97  If,  however,  the  statute  provides  that  specified 
officers  shall  sign  the  contracts  of  the  corporation,  their 
signatures  are  presumptive  evidence  that  such  contract  is 
the  act  of  the  corporation.98 

33.  Sealed  Instruments. 

An  instrument  executed  under  the  seal  of  a  corporation 
may  be  put  in  evidence  without  further  proof,  if  it  has  been 

tion  is  acted  upon  it  is  in  itself  of    such    board.      Trephagen    v. 

sufficient  evidence  of  a  contract  of  South   Omaha,   69   Neb.   577,   96 

employment.      Setter    v.    Coates-  N.  W.  Rep.  248,  111  Am.  St.  Rep. 

ville  Boiler  Works  (Pa.),  101  Atl.  570. 

744.  The    depositing  of   funds   of  a 

95Ang.  &  A.  on  C.,  §§297-299;  corporation  by  its  treasurer,  with 

Titus  v.  Cairo,  etc.,  R.  R.  Co.,  37  another  corporation,  is  not  in  viola- 

N.  J.  L.  102.  tion  of  any  statute,  and  it  is  there- 

94  Smith  v.  Smith,  117  Mass.  72.  fore  presumed  not  to  be  in  violation 

97  See  Hoyt  v.  Thompson,  5  N.  Y.  of  any  by-law  of  the  corporation. 

320,  3  Bosw.  267,  285.     But  the  Matter   of   Smith,  etc.,   Co.,   170 

power  is  now  often  presumed  in  Fed.  Rep.  900,  96  Circ.  Ct.  App. 

favor  of  third  persons  dealing  in  76. 

good  faith.  A  deed  executed  by  an  officer 

The  signing  of  a  petition  by  the  of  a  corporation  with  the  corpor- 

board   of   directors   for  paving   a  ate  seal  affixed  raises  the  presump- 

street   and   thereby   charging  the  tion  that  the  officer  was  authorized 

corporation's  real  estate  with  the  to   execute  it.    Sibly  v.  England, 

expense  of  the  improvement  is  an  91  Ark.  420,  119  S.  W.  Rep.  820. 

act  generally  deemed  to  be  within  M  BRONSON,  J.,  Gillett  v.  Camp- 

the  scope  of  the  managing  powers  bell,  1  Den.  520. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


123 


proved  or  acknowledged  as  required  for  a  deed  of  lands  to  be 
recorded ;  and  if  it  has  been  also  recorded,  under  the  statute, 
the  record  or  a  certified  copy,  according  to  the  statute,  is 
equally  admissible  as  the  original."  This,  as  in  the  case  of  a 
deed  of  an  individual,  raises  a  legal  presumption  that  the 
seal  was  the  seal  of  the  corporation,  and  that  it  was  affixed  by 
its  authority,1  even  where  the  law  requires  express  authority 
from  the  corporation  or  board  to  sanction  the  grant  in  ques- 
tion. But  this  presumption  is  rebutted  by  an  admission  or 
proof  that  the  act  was  not  authorized  nor  ratified  by  the 
board,  and  in  such  case  it  is  void,2  unless  the  use  of  a  seal  was 
unnecessary  and  superfluous.  If  the  instrument  is  not  thus 
authenticated,  the  seal  (unless  it  be  that  of  a  domestic 
municipal  corporation  which  the  court  may  judicially  no- 
tice) 3  must  be  proved  to  be  genuine,  by  calling  either  one 
who  saw  it  affixed,  or  equally  well  any  one  who  knows  the 
seal.4  But  the  testimony  of  a  witness  that  he  had  been  told 


99  Lovett  v.  Steam  Mill,  etc.,  Co., 
6  Paige,  60;  Kelly  v.  Calhoun,  95 
U.  S.  710.  A  certified  copy  of  deed, 
to  be  admissible,  need  not  show 
by  scroll  or  otherwise  that  the 
original  was  under  the  seal  of  the 
corporation  making  it,  if  its  reci- 
tals are  to  the  effect  that  it  was 
under  the  corporate  seal.  Colvin 
r.  Republican  Valley  Land  Ass'n, 
23  Neb.  75,  8  Am.  St.  Rep.  114, 
36  X.  W.  Rep.  361. 

To  the  same  effect,  Sargent  v. 
Chapman,  12  Colo.  App.  529,  56 
Pac.  Rep.  194. 

1  Id. ;  Chamberlain  v.  Bradley, 
101  Mass.  188,  s.  c.,  3  Am.  R. 
331;  Sheehan  v.  Davis,  17  Ohio  St. 
571,  581. 

The  corporate  seal  need  not  be 
attached  to  a  corporate  contract 
unless  a  similar  contract,  when 
made  by  an  individual  would  re- 


quire a  seal.  Alabama  Fidelity 
&  Casualty  Co.  v.  Jefferson  Co. 
Savings  Bank  (Ala.),  73  So.  Rep. 
918. 

*  Hoyt  v.  Thompson,  5  N.  Y.  335, 
19  Id.  207;  Eureka  Co.  v.  Bailey, 
11  Wall.  491. 

The  mere  affixing  of  the  seal  of 
the  corporation  to  a  note  or  other 
instrument  not  requiring  a  seal 
will  not  make  the  instrument  a 
specialty;  it  must  be  shown  that 
the  seal  is  the  seal  of  the  corpora- 
tion and  that  it  was  affixed  with 
authority.  Grubbs  v.  National 
Life  Maturity  Ins.  Co.,  94  Va. 
589,  27  S.  E.  Rep.  464. 

3  The  court  does  not  judicially 
notice  the  seal  of  a  foreign  corpora- 
tion.    Ang.  &  A.  on  Corp.  201, 
§216. 

4  Jackson    v.    Pratt,    10   Johns. 
381,  Ang.  &  A.  on  Corp.  200,  §  216; 


124 


ACTIONS   BY   AND    AGAINST   CORPORATIONS 


by  corporate  officers  that  it  was  the  seal  of  the  corporation, 
is  not  enough.5 

The  seal  being  thus  proved,  upon  a  corporate  deed  regular 
on  its  face,  and  apparently  executed  in  due  form,  the  law 
presumes  that  the  deed  was  executed  and  the  seal  affixed  by 
competent  authority  from  the  corporation.6  Hence,  alike 
where  the  deed  bears  a  due  certificate  of  acknowledgment,7 
etc.,  and  where  the  seal  is  proved  or  judicially  noticed,8  the 
law  presumes  that  the  deed  was  duly  executed  and  the  seal 
affixed  by  a  competent  authority  hi  pursuance  of  whatever 
power  the  corporation  has,  or  may  be  presumed  to  have,9  to 
convey;  and  it  is  not  necessary  for  the  party  claiming  under 
the  instrument  to  produce  the  resolution  or  by-law  giving 
authority,  but  the  burden  is  on  the  party  resisting  it  to  show 


Moises  v.  Thornton,  8  T.  R.  307; 
Brounker  v.  Atkyns,  Skinn.  2, 
cited  in  Rose.  N.  P.  146;  Finch  v. 
Gridley,  25  Wend.  469. 

5  Moises  v.  Thornton,  above. 

8  Whitney  v.  Union  Trust  Co., 
60  N.  Y.  576;  Hoyt  v.  Thompson, 
5  N.  Y.  320,  Rose.  N.  P.  147,  and 
cases  cited.  Where  the  common 
seal  of  a  corporation  appears  to 
be  affixed  to  an  instrument,  and 
the  signatures  of  the  proper  officers 
are  proved,  the  courts  are  to 
presume  that  the  officers  did  not 
exceed  their  authority,  and  the 
seal  itself  is  prima  facie  evidence 
that  it  was  affixed  by  proper  au- 
thority. Osborne  v.  Tunis,  1 
Dutch.  (N.  J.)  633;  Lovett  v. 
Steam  Saw-Mill  Ass'n,  6  Paige's 
Ch.  54;  Flint  v.  Clinton  Co.  Trust- 
ees, 12  N.  H.  430;  Chouquette  r. 
Barada,  28  Mo.  491;  Bank  of  the 
United  States  v.  Dandridge,  12 
Wheat.  70;  Trustees  Canandarque 
Academy  v.  McKechnie,  90  N.  Y. 
618.  A  contract  unde'r  seal  exe- 


cuted by  the  agents  of  a  corpora- 
tion is  subject  to  the  same  rules  of 
evidence,  and  of  law,  as  a  similar 
contract  executed  by  the  agents 
of  an  individual.  In  order  to  prove 
the  execution  of  such  a  contract, 
it  must  be  shown  that  the  agents 
by  whom  the  contract  purports 
to  have  been  executed  were  in 
fact  agents  of  the  corporation, 
having  authority  to  execute  the 
contract  in  question  or  contracts 
of  that  general  description.  Mor- 
rison v.  Wilder  Gas  Co.,  91  Me. 
492,  40  Atl.  Rep.  542. 

The  corporate  seal  affixed  to  the 
assignment  of  an  underwriting 
agreement  is  prima  facie  evidence 
that  the  assignment  was  executed 
by  corporate  authority.  Kirk- 
patrick  v.  Eastern  Milling,  etc., 
Co.,  135  Fed.  Rep.  144. 

7  Johnson  v.  Bush,  3  Barb.  Ch. 
239. 

s  2  Dill.  M.  C.  550,  §  450. 

9  Paragraph  30,  above. 


ACTIONS   BY   AND   AGAINST   COKPORATIONS  125 

that  the  officers  signing  were  not  authorized  to  convey,  or 
that  those  having  custody  of  the  seal  were  not  authorized  to 
affix  it.10  If  the  seal  is  an  ordinary  one,  not  the  distinctive 
seal  of  the  particular  corporation,  some  evidence  must  be 
adduced  (if  the  seal  is  necessary  to  the  instrument),  that  it 
was  used  as  a  corporate  seal,  and  that  the  instrument  was 
executed  by  the  proper  officers  by  authority  from  the  board 
or  corporation ;  n  and  this  will  admit  the  deed. 12  A  corporate 
seal,  undisputed,  is  prima  facie  evidence  that  the  deed  is  that 
of  the  corporation.13  The  facts  necessary  to  show  authority 
on  the  part  of  the  agent  of  execution,  whoever  he  may  be, 
may  always  be  proved  by  extrinsic  evidence,  and  always  by 
parol,  unless  it  appears  that  the  best  evidence  is  in  writing,  or 
the  statute  requires  the  corporation  to  give  written  authority. 
Where  a  conveyance  is  made  by  a  corporation,  the  grantee's 
attorney  usually  requires  a  certified  copy  of  the  resolution 
authorizing  its  execution,  and  this,  if  preserved,  affords 
convenient  primary  evidence  as  against  the  corporation, 
and  secondary  evidence  as  against  others,  of  authority,  where 
direct  proof  of  authority  is  necessary.  Proof  of  the  seal  on 
an  instrument  produced  by  one  claiming  under  it,  is  sufficient 

10  Same  authorities.    A  recital  in  under  seal  is  not  admissible  in  the 

a  deed  of  a  corporation,  properly  absence  of  the  production  of  a  copy 

executed,  that  it  was  executed  in  of    such    resolution.      Tobin    v. 

pursuance  of  an  order  of  the  board  Roaring  Creek,  etc.,  Co.,  86  Fed. 

of   directors,    dispenses   with   the  Rep.  1020. 

necessity  of  proving  such  action  u  Miners'  Ditch  Co.  v.  Zeller- 
of  the  board  otherwise  than  by  the  bach,  37  Cal.  543,  s.  c.(  1  Withr. 
deed  itself.  Caldwell  v.  Morgan-  Corp.  Cas.  250, 284,  and  cases  cited, 
ton  Mfg.  Co.,  121  N.  C.  339,  28  12  Phillips  v.  Coffee,  17  111.  154, 
S.  E.  Rep.  475.  Proof  that  the  seal  and  cases  cited;  Christie  v.  Gage, 
was  affixed  by  the  printer  of  cor-  2  Supm.  Ct.  (T.  &  C.)  344. 
porate  bonds,  by  direction  of  the  13  St.  John's  Church  v.  Stein- 
proper  officers,  who  afterward  metz,  18  Pa.  St.  273. 
signed  and  delivered  the  bonds,  is  An  assignment  by  a  corporation 
sufficient.  Royal  Bank  v.  Grand  with  seal  affixed  is  presumed  to  be 
Junction  R.  R.  Co.,  1  Withr.  Corp.  made  with  authority.  McKee  v. 
Cas.  644,  s.  c.,  100  Mass.  414.  Cunningham,  2  Cal.  App.  684,  84 

Oral  evidence  as  to  a  resolution  Pac.  Rep.  260. 


126  ACTIONS   BY   AND    AGAINST    CORPORATIONS 

proof  of  delivery,  unless  it  appears  that  affixing  the  seal  was 
not  intended  as  a  complete  execution.14  The  officer  or  agent 
who  signs  on  the  part  of  the  corporation,  though  expressly  to 
"attest"  the  instrument,  is  not  deemed  a  subscribing  witness 
who  must  be  called,  unless  the  intent  is  clear  that  he  signed 
not  on  the  part  of  the  corporation,  but  as  an  indifferent  wit- 
ness.15 

34.  Corporate  Acceptance  of  Deeds,  etc. 

The  acceptance  of  a  bond  or  deed  to  a  corporation  may  be 
presumed  from  the  fact  that,  after  it  was  submitted  to  the 
board  for  approval,  it  was  retained  by  the  corporation,  and 
acted  on — as,  for  instance,  in  the  case  of  a  cashier's  bond, 
where  the  cashier  was  permitted  to  enter  upon  or  continue  in 
the  discharge  of  his  duties — and  the  fact  that  it  was  pre- 
sented to  and  approved  by  the  board  may  be  established  by 
parol.16 

35.  Contract  Ambiguous  as  to  Party. 

The  act  or  contract  of  an  agent  of  a  corporation  does  not 
derive  its  efficacy  to  bind  or  to  benefit  the  corporation  from 
professing  on  its  face  to  have  been  done  in  the  exercise  of  the 
agency.17  If  upon  the  face  of  the  instrument  there  are 
indications  suggestive  of  agency — such  as  the  addition  of 
words  of  office  or  agency  to  the  signature,  or  the  imprint  of 
the  corporate  title  on  the  paper — parol  evidence  is  com- 
petent to  show  who  the  parties  intended  should  be  bound  or 

14  Ang.  &  A.  on  Corp.  202,  §  227.  Corporate  powers,  business  and 

"Compare  Deffell  v.  White,  property  of  a  corporation  must  be 

L.  R.  2  C.  P.  144;  Kelly  v.  Calhoun,  exercised,  controlled  and  conducted 

U.  S.  Supm.  Ct.  17  Alb.  L.  J.  55.  by  the  board  of  directors;  and 

16  Bank  of  U.  S.  v.  Dandridge,  prima  facie  the  corporate  power  of 

12  Wheat.  64;  Graves  v.  Lebanon  making  contracts  or  of  refusing  to 

Nat.  Bank,  10  Bush  (Ky.),  23,  s.  perform  rests  with  the  board  of 

c.,  19  Am.  Rep.  50,  and  cases  cited,  directors.  Bradford  Belting  Co. 

»  Mech.  Bk.  v.  Bank  of  Colum-  v.  Gibson,  68  Ohio  St.,  442,  67  N. 

bia,  5  Wheat.  326.  E.  Rep.  888. 


. 

ACTIONS   BY   AND   AGAINST   CORPORATIONS  127 

benefited.18  And  even  where  the  contract  bears  no  such 
suggestion  on  its  face,  the  rule  as  now  generally  received  is 
that  parol  evidence  is  competent  either  in  favor  of  or  against 
the  corporation  (except,  perhaps,  when  the  instrument  is  a 
specialty);  but  that  it  is  not  competent  for  the  purpose  of 
exonerating  the  signer  from  personal  liability  if  the  other 
party  to  the  instrument  chooses  to  hold  him  personally 
liable,19  unless  there  is  evidence  that  the  signer  was  duly 
authorized  to  contract  for  the  corporation,  and  that  credit 
was  actually  given  to  the  corporation  alone.20  If  a  seal  is  not 
essential  to  the  validity  of  the  act,  the  authority  of  the  agent 
may  be  proved  by  oral  evidence,21  or  by  proof  of  ratification, 
e.  g.,  the  payment  of  an  instalment  pursuant  to  it.22 

IV.  TORTS  BY  A  CORPORATION 

36.  False  Representations  by  Meeting. 

Fraudulent  representations  by  the  corporate  body  may 
be  proved  by  evidence  that  an  official  report,  containing 
material  misrepresentations  of  fact  as  to  the  affairs  of  the 
corporation,  was  presented  to  a  public  and  general  meeting 
of  the  corporators,  by  a  board  or  committee  acting  in  the 
course  of  its  duty,  and  either  that  it  was  tacitly  sanctioned 
by  the  meeting  and  subsequently  circulated  by  the  directors 
for  the  benefit  of  the  company,23  or  that  it  was  expressly 

18  Id.;  Vater  v.  Lewis,  36  Ind.  with  a  company  as  a  corporation 

288,  and  cases  cited.  or  as  a  partnership — Held  a  ques- 

An  offer  signed  by  "W.  H.  M.,  tion  of  fact  for  the  jury,  in  Rush- 
manager,"  will  sustain   a   finding  Owen  Lumber  Co.  v.  Wellman,  10 
that  it  was  intended  to  be  an  offer  S.  Dak.  122,  72  N.  W.  Rep.  89. 
by  the  corporation.    Metropolitan  21  See  paragraph  29,  above,  and 
Coal  Co.  v.  Boutell  Transp.,  etc.,  48,  below. 

Co.,  196  Mass.  72,  81  N.  E.  Rep.  22  Eureka    Company    v.    Bailey 

645.  Company,  11  Wall.  491. 

19 2  Tayl.  Ev.,  §1054;  Briggs  v.  "Nat.   Exch.   Bk.   v.   Drew,  2 

Partridge,  64  N.  Y.  357.  Macq.  H.  L.  103,  s.  c.,  32  Eng.  L. 

20  See  Ang.  &  A.  on  Corp.  299,  &  Eq.  1;  New  Brunswick,  etc.,  Co., 

§  294.  9  Ho.  of  L.  Gas.  711. 

Whether  a  contract  was  made  A  court  of  equity  may  intervene 


128 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


adopted  by  the  meeting  and  put  forth  to  the  public,  even  al- 
though no  vote  to  publish  it  were  passed.24  But  the  mere 
acceptance  of  a  false  communication  from  an  officer  or 
servant,25  or  a  vote  "accepting"  a  report  of  a  committee, 
does  not  alone  make  the  statements  in  it  representations, 
or  even  admissions,  competent  against  the  corporation.26 

37.  Frauds  by  Directors,  etc. 

It  has  been  held  that  fraud  by  the  board  of  directors,  or 
by  the  managing  agent,  may  be  proved  under  an  allegation 
of  fraud  committed  by  the  corporation,  if  the  act  be  such 
as  to  bind  the  company.27  False  representations  in  corre- 


and  appoint  a  receiver  of  a  corpo- 
ration not  insolvent,  where  there 
has  been  such  mismanagement  of 
its  business  as  to  require  such  ap- 
pointment for  the  protection  of 
the  rights  of  stockholders.  Morse 
v.  Metropolitan  S.  S.  Co.  (N.  J. 
Ch.),  100  Atl.  Rep.  219. 

At  the  instance  of  complaining 
stockholders,  where  willful  and  in- 
tentional mismanagement  in  the 
affairs  of  a  corporation  are  shown, 
a  court  of  equity  may,  without 
statutory  authority,  and  in  the  ab- 
sence of  corporate  insolvency,  in- 
tervene by  way  of  receivership, 
and  adjudge  a  dissolution  of  the 
corporation.  Green  v.  National 
Advertising  &  Amusement  Co. 
(Minn.),  162  N.  W.  Rep.  1056. 

A  complaining  stockholder  who 
does  not  show  that  he  has  ever 
called  the  subject-matter  of  his 
complaint  to  the  attention  of  the 
directors,  has  no  standing  in  equity 
for  relief.  Chapin  v.  Citizens'  Tel- 
ephone Co.  (Mich.),  162  N.  W. 
Rep.  958. 

"  Green's  Brice  Ultra  V.  245,  cit- 


ing Re  Nat.  Patent  Steam  Fuel 
Co.,  4  Drew,  529. 

The  issuance  of  stock  in  consid- 
eration of  property  will  be  pre- 
sumed free  from  fraud  unless  the 
contrary  clearly  appears.  Brown 
v.  Weeks  (Mich.),  161  N.  W.  Rep. 
945. 

25  Burns  v.  Pennell,  2  H.  L.  Gas. 
497. 

An  action  may  be  maintained 
against  a  corporation  for  damages 
caused  by  a  conspiracy  in  which 
it  participated.  It  is  not  neces- 
sary for  its  officers  or  agents  to 
have  had  authority  to  perform  all 
of  the  acts  done  in  the  execution 
of  the  conspiracy,  but  any  essen- 
tial act  which  the  conspiracy  con- 
templated done  by  an  agent  of  the 
corporation  must  be  in  fact  done 
by  him  as  such  agent  acting 
within  the  line  and  scope  of  his 
employment.  National  Park  Bank 
v.  Louisville  &  N.  R.  Co.  (Ala.), 
74  So.  Rep.  69. 

26 1  Dill.  M.  C.  357,  §  242. 

27  Glamorganshire  Co.  v.  Irvine, 
4  F.  &  F.  947;  Barwick  v.  English 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


129 


spondence  or  other  wise  by  officers  or  agents  of  a  corporation, 
if  brought  home  to  the  corporation  as  its  act,  will  sustain 
the  allegation,  and  the  large  latitude  given  to  the  admission 
of  evidence  bearing  on  a  question  of  fraud  is  allowable  against 
a  corporation  as  well  as  against  individuals.28 


Joint  Stock  Bank,  L.  R.  2  Ex.  (Ch.) 
259;  Mackay  v.  Com.  Bk.,  L.  R.  5 
C.  P.  394,  s.  P.,  King  v.  Fitch,  2 
Abb.  Ct.  App.  Dec.  508;  and  see 
21  N.  Y.  238. 

Funds  of  a  corporation  can  be 
lawfully  used  for  corporate  pur- 
poses only  and  if  misapropriated 
by  the  directors,  they  and  whoever 
with  notice  participated  with  them 
are  jointly  and  severally  liable  to 
the  corporation.  If  the  corpora- 
tion remains  inactive,  equity  will 
afford  relief  on  a  bill  brought  by 
one  or  more  of  the  stockholders 
for  its  benefit  and  to  which  it  must 
be  made  a  party.  Corey  v.  Inde- 
pendent Ice  Co.,  226  Mass.  391, 
115  N.  E.  Rep.  488. 

If  a  director  acts  for  himself  in 
matters  where  his  interest  con- 
flicts with  his  duty,  the  law  holds 
the  transaction  constructively 
fraudulent  and  voidable  at  the 
election  of  the  corporation.  Du 
Pont  v.  DuPont,  242  Fed.  Rep.  98. 

Where  directors  own  a  majority 
of  the  stock  of  a  corporation  and 
completely  control  it,  a  stockholder 
may  maintain  an  action  to  set 
aside  acts  of  the  directors  for  fraud 
without  alleging  that  he  has  first 
applied  to  the  corporation  or  its 
directors  and  requested  corporate 
action.  Alabama  Fidelity  Mort- 
gage &  Bond  Co.  v.  Dubberly 
(Ala.),  73  So.  Rep.  911. 


"While  the  directors  are  not  li- 
able for  losses  resulting  from  mis- 
takes of  judgment  such  as  are  ex- 
cused in  law,  they  are  liable  for 
gross  mismanagement  and  neglect 
of  the  affairs  of  the  corporation. 
Good  faith  alone  will  not  excuse 
them  when  there  is  the  lack  of  the 
proper  care,  attention  and  circum- 
spection in  the  affairs  of  the  corpo- 
ration which  is  exacted  of  them  as 
trustees."  Anthony  v.  Jeffress, 
172  N.  C.  378,  90  S.  E.  Rep.  414. 

28  See  Butler  v.  Watkins,  13  Wall. 
464;  Marigny  v.  Union  Bank,  5 
Rob.  (La.)  354;  Upton  v.  Engle- 
hardt,  3  Biss.  343. 

A  corporation  is  liable  for  the 
fraud  of  its  agents  acting  within 
their  authority  and  in  due  course 
of  its  business,  and  cannot  shield 
itself  from  responsibility  by  show- 
ing that  the  agent  also  failed  in  his 
duty  to  the  corporation.  Vulcan 
Detinning  Co.  v.  American  Can 
Co.,  70  N.  J.  Eq.  588,  62  Atl.  Rep. 
881. 

A  minority  stockholder  may  pro- 
ceed in  equity  in  behalf  of  himself 
and  other  stockholders  against  the 
corporation,  its  officers  and  third 
persons  in  collusion  with  its  offi- 
cers, for  fraud  or  acts  uUra  vires 
which  operate  to  injure  or  damage 
the  property  of  the  corporation, 
but  it  must  be  shown  that  he  has 
acted  promptly,  and  that  he  has 


130 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


38.  Liability  for  Wrongs  by  Officers  or  Agents. 

To  render  a  corporation  liable  for  a  tort  committed  by 
its  officers  or  agents,  it  is  not  necessary  to  show  that  the 
corporation  was  authorized  to  do  the  act,29  but  it  must  be 
shown  that  he  by  whom  it  was  done  was  at  the  time  engaged 
in  the  business  of  his  office  or  agency,  and  acting  within  its 
scope.  In  these  respects,  the  evidence  to  charge  a  corpora- 
tion with  a  fraud  of  its  agent  or  officer  depends  on  the 
general  principles  of  agency.30  If  the  act  is  such  that  had 


made  earnest  effort  to  obtain  re- 
dress at  the  hands  of  the  directors 
and  stockholders.  In  such  a  case 
the  corporation  is  a  necessary  party 
defendant.  Smith  v.  Coolidge 
Banking  Co.  (Ga.),  92  S.  E.  Rep. 
519. 

Where  the  negligence  of  a  di- 
rector is  an  injury  to  his  corpora- 
tion, the  corporation  is  vested  with 
a  legal  right  to  recover  for  such 
negligence.  Kelly  v.  Dolan,  233 
Fed.  Rep.  635,  147  C.  C.  A.  443. 

»N.  Y.  &  New  Haven  R.  R. 
Co.  v.  Schuyler,  34  N.  Y.  30,  affi'g 
38  Barb.  534. 

Where  an  officer  or  agent  of  a 
corporation  performs,  in  favor  of 
a  certain  person,  an  act  which  he 
has  no  right  to  do,  although  it 
comes  within  the  apparent  scope 
of  his  authority,  his  action  can- 
not be  held  to  bind  the  corporation 
in  favor  of  said  person,  who  has 
knowledge  of  his  lack  of  authority. 
Lucile  Dreyfus  Mining  Co.  v,  Wil- 
lard,  46  Wash.  345,  89  Pac.  Rep. 
935. 

30  Hunter  v.  Hudson  River  Iron 
Co.,  20  Barb.  507;  and  see  46  N. 
Y.  23. 

Where  an  officer  of  a  corporation 


used  a  corporate  check  without 
authority,  and  the  corporation 
thereupon  secured  itself  against 
loss  upon  such  check  by  taking 
the  bond  of  a  third  person,  the 
corporation  effected  a  novation 
and  could  thereafter  look  to  the 
substituted  debtor  only  for  reim- 
bursement. Security  Warehousing 
Co.  v.  American  Exchange  Na- 
tional Bk.,  118  N.  Y.  App.  Div. 
350,  103  N.  Y.  Supp.  399. 

Where  one  is  induced  by  the  oral 
fraudulent  representations  of  an 
agent  of  a  corporation,  not  amount- 
ing to  warranties,  to  enter  into  a 
contract  of  subscription  to  the 
stock  of  the  corporation,  he  may 
have  such  contract  set  aside,  not- 
withstanding the  fact  that  the  con- 
tract contains  a  provision  that  no 
statement,  representation  of  agree- 
ment of  warranty  made  by  the 
agent  taking  the  contract  shall  in 
any  way  operate  to  cancel  or  annul 
it.  Jones  v.  Bankers'  Trust  Co.,  239 
Fed.  Rep.  770. 

"Corporations  act  through 
agents  or  servants,  and  if  they  are 
liable  for  negligence,  they  are  so 
liable  because  of  the  negligent  act 
or  omission  of  some  particular 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


131 


it  been  done  without  malice,  the  corporation  would  have 
been  bound  by  it  (as  in  case  of  a  prosecution  instituted),  or 
would  have  been  liable  for  injury  resulting  (as  in  case  of  a 
carrier's  breach  of  duty),  it  is  no  defense  for  the  corporation 
to  show  that  it  was  the  willful  and  malicious  act  of  the  agent 
or  servant.31 

V.  MEETINGS  AND  BY-LAWS 

39.  Evidence  of  Regularity  of  Meetings. 

When  the  books  are  competent,  an  entry  in  the  usual 
form,  that  after  due  notice  32  the  members  met,  imports 


agent  or  servant."  Miller  v.  Ann 
Arbor  R.  Co.  (Mich.),  162  N.  W. 
Rep.  1025. 

31  Weed  v.  Panama  R.  R.  Co.,  17 
N.  Y.  362,  affi'g  5  Duer,  190,  and 
cases  cited;  Green's  Brice's  Ultra 
V.  266,  nn.  *.  f.  Compare  Ang. 
&  A.  Corp.,  §  388;  1  Redf.  Rw.  533, 
and  Rounds  v.  Delaware,  etc.,  Co., 
64  N.  Y.  133. 

If  the  agent  under  guise  and 
cover  of  executing  the  corporation's 
orders,  and  executing  the  author- 
ity conferred  upon  him,  wilfully 
and  designedly,  for  the  purpose  of 
accomplishing  his  own  independ- 
ent, malicious,  or  wicked  purposes, 
does  an  injury,  then  the  corpora- 
tion is  not  liable.  Cohen  v.  Dry 
Dock,  etc.,  R.  Co.,  69  N.  Y.  170. 

Where  the  president  of  a  corpo- 
ration fraudulently  obtained  a 
check  from  another  and  indorsed 
it  to  the  corporation,  no  other  of- 
ficer or  director  having  any  reason 
to  suspect  fraud,  his  knowledge  of 
the  fraud  is  not  imputed  to  the 
corporation.  In  re  U.  S.  Hair  Co., 
239  Fed.  Rep.  703,  152  C.  C.  A. 
537. 


32  The  principle  that  in  certain 
cases  the  proceedings  of  a  meeting 
are  not  valid  without  due  notice  of 
meeting,  is  confined  to  meetings  of 
the  corporate  body,  and  does  not 
extend  to  meetings  of  directors  and 
committees.  Samuel  ».  Holladay, 
Woolw.  C.  C.  400,  s.  c.,  1  Withr. 
Corp.  Gas.  145.  And  due  notice 
of  a  meeting  of  the  corporators,  if 
not  in  issue,  may  be  presumed, 
against  the  corporation  and  those 
claiming  under  them.  Cobleigh 
v.  Young,  15  N.  H.  493.  For  req- 
uisites of  proof  of  notice,  where 
the  action  of  the  meeting  is  di- 
rectly and  not  collaterally  in  ques- 
tion, see  Green's  Ultra  V.  350-355; 
People  v.  Batcheler,  22  N.  Y.  128, 
affi'g  28  Barb.  310;  Atlantic  Fire 
Ins.  Co.  v.  Sanders,  36  N.  H.  269; 
Clark  v.  Wardwell,  55  Me.  61. 

Where  certificates  of  stock  had 
been  assigned  in  blank  and  the 
stock  had  never  been  transferred 
upon  the  books  of  the  company  but 
a  memorandum  to  this  effect  had 
been  entered  upon  the  stubs  in  the 
certificate  of  the  stock  book,  the 
holder  of  the  stock  was  not  such  a 


132  ACTIONS   BY   AND    AGAINST   CORPORATIONS 

that  the  statutory  quorum  was  present; 33  and  from  a  record 
stating  a  proceeding,  but  silent  as  to  the  mode  of  it,  the 
law  presumes  that  the  legal  mode  was  pursued.34  It  has 
generally  been  held  that  to  prove  the  action  of  a  board  or 
committee,  there  should  be  evidence  that  there  was  a  meet- 
ing of  the  committee,  and  that  those  who  signed  the  report 
were  together  when  they  signed  it,  or  that  the  absent  mem- 
bers had  notice  of  the  meeting,  or  an  opportunity  to  be 
present; 35  but  in  the  case  of  private  corporations  this  rule 
is  more  or  less  relaxed,  according  to  the  common  usages  of 
corporate  business  within  the  jurisdiction.36 

40.  Acts  by  Parol. 

The  acts  of  a  private  corporation,  or  of  its  board  or  com- 
mittee, may  generally  be  proved  by  parol  testimony  of  a 
witness,37  even  where  the  statute  requires  a  fair  and  regular 
record  of  proceedings  to  be  kept,38  or  declares  the  books  to 
be  evidence,  if  it  does  not  declare  them  to  be  exclusive  evi- 

stockholder  of  the  company  as  en-  charter    or    by-law.     Lippman    v. 

titled  him  to  notice  of  a  stockhold-  Kehoe  Stenograph  Co.  (Del.  Ch.), 

ers'  meeting.     Osborn   v.   Detroit  98  Atl.  Rep.  943. 
Kraut  Co.  (Mich.),  160  N.  W.  Rep.          »•  See  City  of  Troy  v.  Winters,  2 

442.  Hun,  63. 

33  Commonwealth  v.  Woelper,  3          36  See  Re  Bonelli's  Telegraph  Co., 
Serg.  &  R.  32;  Grays  v.  Turnpike  L.  R.   12  Eq.  246;  Bradstreet  v. 
Co.,  4  Rand.  578,  and  see  8  Allen,  Bank  of    Royalton,  42    Vt.   128, 
217,  15  N.  H.  502.  cited  in  Field  on  Corp.  256,  §  237, 

At  a  meeting  called  for  a  special  n.;  Edgerly  v.  Emerson,  23  N.  H. 

purpose  no  action  taken  will  be  566. 

binding  unless  every  stockholder          37  Bk.  of  Lyons  v.  Demmon,  Hill 

has  had  notice.    Asbury  v.  Mauney  &  D.  Supp.  398;  Am.  Ins.  Co.  v. 

(N.  C.),  92  S.  E.  Rep.  267.  Oakley,  9  Paige,  496;  Partridge  v. 

34  Hathaway  v.  Addison,  48  Me.  Badger,  25  Barb.  146,  and  cases 
440,  and  see  2  B.  Monr.  177.  cited.     See  also  on  this  subject, 

In  general,  directors  of  a  cor-  31  How.  St.  Tr.  673,  cited  in  1 

poration  may  hold  their  meetings  Phill.  Ev.  591;  R.  v.  Hunt,  3  B.  & 

and  transact  business  outside  of  Aid.  566. 

the  State  of  incorporation,  unless          3S  Bank  of  U.  S.  v.  Dandridge,  12 

it  is  otherwise  prescribed  by  its  Wheat.  64,  STORY,  J. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  133 

dence,  of  the  proceedings,39  for  acts  even  so  formal  as  a  by- 
law or  regulation  may  be  adopted  without  written  evidence 
of  a  vote  *  and  when  so  adopted  they  may  be  proved  by 
direct  evidence,  or  inferred  from  circumstances,  even  if 
there  be  written  records  of  other  acts; 41  and  the  fact  that 
no  record  was  made  of  the  act  in  question  may  be  proved 
by  calling  the  keeper  of  the  record,  without  producing  or 
accounting  for  the  book.42 

41.  Pleading  By-laws,  etc. 

The  courts  refuse  to  notice  judicially  the  by-laws  of  a 
private  corporation,43  and  under  the  new  practice  they 
should  be  pleaded,  whenever  directly  in  question,  as  the 
foundation  of  an  action  or  defense.44  Nor  do  the  courts, 
unless  it  be  those  of  the  municipality,  judicially  notice  the 
ordinances  of  a  municipal  corporation,  if  not  directed  by 
law  to  do  so.  Therefore,  such  ordinances,  when  sought  to 
be  enforced  by  action,  or  when  set  up  by  the  defendant  as  a 
protection,  should  be  set  out  in  the  pleading.  It  is  not 
sufficient  that  they  be  referred  to  generally  by  the  title  or 
sections.45 

39  Inglis  v.  Great  N.  Ry.  Co.,  16      Corp.     v.    Valentine,     10     Pick. 
Eng.  L.  &  Eq.  55,  s.  c.,  1  McQ.  H.      142. 

I,.   112,   119,  Ld.  ST.  LEONARDS;  "Smith  v.  Richards,  29  Conn. 

Magill  v.  Kauffman,  4  Serg.  &  R.  232,    243.      Otherwise,    perhaps, 

317,  Ang.  &  A.  Corp.  159,  §  186;  where  the  evidence  is  offered  by 

Waters   v.   Gilbert,    2    Gush.    31.  the  corporation.     "We  must  take 

Contra,  in  case  of  a  municipal  cor-  notice  of  a  usage  so  general  as  that 

poration,  Gilbert  v.  City  of  New  of  a  church  to  keep  a  record." 

Haven,  40  Conn.  102.  SHAW,  Ch.  J.,  Sawyer  v.  Baldwin, 

40  See  paragraphs  56-58.  1  Pick.  492;  and  see  Narragansett 

41  Lockwood  v.  Mechanics',  etc.,  Bank  v.  Atlantic  Silk  Co.,  3  Mete. 
Bk.,  9  R.  I.  308,  s.  c.,  11  Am.  R.  287. 

253,  and  cases  cited;  U.  S.  Bank  v.  "  Youngs  v.  Ransom,  31  Barb. 

Dandridge,  12  Wheat.  64.    Where  49. 

there  are  no  books  to  resort  to,  44  Compare    Atlantic    Fire    Ins. 

clear    and    satisfactory    evidence  Co.  v.  Sanders,  36  N.  H.  252. 

of  another  sort  should  be  required.  45 1  Dill.  M.  C.  167,  and  cases 

SHAW,   Ch.  J.,   Central  Turnpike  cited;  436,  §  346. 


134 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


42.  Proof  of  By-Laws. 

By-laws  or  ordinances  of  a  municipal  corporation  will  be 
usually  proved  pursuant  to  statute,  by  producing  the  volume 
in  which  they  are  officially  published,  or  by  a  certified  copy.46 
Where  they  are  proved  by  production  of  the  minutes  of 
the  common  council,  the  mayor's  approval  must  be  also 
shown.47  By-laws  adopted  by  other  than  municipal  corpora- 
tions are  valid,  although  no  written  record  of  the  vote  of 
adoption  was  made;  and  hence  they  may  be  proved  by  pro- 
duction of  the  original  book  or  paper,  with  indirect  evidence 
of  adoption,  such  as  that  they  have  been  handed  down 


«  N.  Y.  Code  of  Civ.  Pro.,  §  941 ; 
Howell  v.  Ruggles,  5  N.  Y.  444,  1 
E.  D.  Smith,  398;  Porter  v.  Waring, 
2  Abb.  New  Gas.  230. 

Courts  do  not  take  judicial  no- 
tice of  municipal  ordinances.  Nor- 
folk, etc.,  Traction  Co.  v.  Forrest, 
109  Va.  658,  64  S.  E.  Rep.  1034; 
Tucker  v.  O'Brien,  117  N.  Y.  Supp. 
1010. 

An  ordinance  may  be  proved 
prima  facie  by  introducing  in  evi- 
dence a  book  entitled  "Charter 
and  Ordinances  of  the  City" 
printed  by  authority  of  the  city. 
Texarkana,  etc.,  Ry.  Co.  v.  Frugia, 
43  Tex.  Civ.  App.  48  (Tex.),  95  S. 
W.  Rep.  563;  Vol.  36,  Cent.  Dig. 
Mun.  Corps.,  §  287. 

A  book  containing  city  ordi- 
nances, published  by  authority  of 
the  common  council  is  presumptive 
evidence  of  such  ordinances;  and 
after  three  years  from  date  of  com- 
pilation it  is  conclusive  evidence 
of  the  regularity  of  the  adoption 
of  the  ordinances.  See  §4137, 
Wise.  Stats.  1898.  It  must  appear 
clearly  that  the  book  was  published 
with  authority.  Quint  v.  City  of 


Merrill,   105  Wis.  406,  81  N.  W. 
Rep.  664. 

A  book  of  ordinances  published 
by  the  authority  of  the  city  of  South 
Ottawa  is  by  statute  made  com- 
petent evidence  of  any  ordinance 
contained  in  it.  See  Rev.  Stat. 
111.,  chap.  28,  §  66.  Chicago,  etc., 
R.  Co.  v.  Thorson,  68  111.  App. 
288. 

A  volume  of  Revised  Ordi- 
nances of  the  City  of  St.  Louis,  pur- 
porting to  be  published  by  the 
city,  is  admissible  in  evidence  under 
§  3100,  Missouri  Revised  Statutes, 
1899,  to  prove  any  ordinance  con- 
tained in  the  volume.  Campbell  v. 
St.  Louis,  etc.,  Ry.  Co.,  175  Mo. 
161,  75  S.  W.  Rep.  86. 

Proof  by  the  secretary  of  the 
town  council  that  a  certain  book 
contained  the  ordinance  of  the 
town,  as  regularly  adopted,  and  an 
offer  of  said  book  in  evidence,  is 
evidence  of  any  ordinance  con- 
tamed  therein.  McCaffrey  v. 
Thomas,  20  Del.  437,  56  All.  Rep. 
382. 

47  Kennedy  v.  Newman,  1  Sandf . 
187. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  135 

from  officers  to  successors,  and  always  acted  on  as  the  rule 
of  the  corporation.48  When  collaterally  relevant,  parol  proof 
is  usually  allowed,  without  production  of  the  written  form, 
especially  if  no  question  is  made  as  to  the  terms  of  the  writ- 
ing; and  juries  have  been  allowed  to  infer  the  existence  of  a 
supposed  by-law,  or  the  repeal  of  an  actual  one,  from  long 
usage.49 

VI.  AUTHORITY  OF  OFFICERS,  AGENTS  AND 
MEMBERS 

43.  Evidence  of  Appointment  of  Officers  and  Agents. 

Where  the  title  to  office  or  agency  is  involved  only  as  in- 
cidental to  the  right  or  liability  of  the  corporation  growing 
out  of  the  acts  of  the  officer  or  agent,  it  may  be  proved  not 
only  by  the  corporate  record  of  election,  if  any,  but  equally 
well  by  parol  testimony,  either  going  directly  to  the  fact  of 
election,  or  showing  that  the  person  in  question  acted  as 
such  and  was  generally  reputed  so  to  be.  Proof  of  such 
facts  by  the  adverse  party  throws  upon  the  corporation  the 
burden  of  disproving  the  alleged  authority.50  General 
reputation  is  not  enough  alone,  except  perhaps  in  case  of  a 
public  officer.51  But  with  evidence  that  the  corporation  had 

48  Union  Bank  v.  Ridgeley,  1  Har.  B1  NELSON,  J.,  Clark  v.  Fanners' 

&G.  324.  Woolen  Manuf.  Co.,  15  Wend. 

«Ang.  &  A.  Corp.  353,  §§328,  256;  Litchfield  Iron  Co.  v.  Bennett, 

329,  p.  394,  §  368.  7  Cow.  234.  Where  the  authority 

60  Pusey  v.  N.  J.  R.  R.  Co.,  14  of  an  officer  of  a  public  corporation 
Abb.  Pr.  (N.  S.)  441.  In  the  ab-  comes  incidentally  hi  question  in 
sence  of  any  statute  making  record  an  action  in  which  he  is  not  a  party, 
evidence,  a  witness  having  personal  it  is  sufficient  to  show  that  he  was 
knowledge  may  testify  as  to  who  an  acting  officer,  and  the  regularity 
were  the  stockholders  at  a  given  of  his  appointment  of  election  can- 
time.  Tying  v.  U.  S.  Submarine,  not  be  made  a  question.  Proof 
etc.,  Co.,  1  Hun,  161.  that  he  is  an  acting  officer  is  prima 

The  resignation  of  a  director  of  a  facie  evidence  of  his  election  or  ap- 

corporation  need  not  necessarily  pointment,  as  well  as  of  his  having 

be  written.  In  re  Kisner,  254  Pa.  duly  qualified.  But  if  proof  of  a 

597,  99  Atl.  Rep.  168.  due  election  or  appointment  is 


136 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


held  him  out  as  its  officer,  or  permitted  him  to  assume  the 
office  without  objection,  or  had  ratified  his  acts  as  such,52 
it  is  sufficient  prima  facie  evidence;  and  slight  evidence  is 
allowed  hi  the  case  of  subordinate  officers  and  servants.53 

Evidence  that  officers  acting  as  such,  and  recognized  by 
the  corporation  or  board,  had  no  regular  or  valid  title  to  the 
office,  does  not  avail.  Even  when  the  question  is  of  their 
right  to  sue  in  the  name  of  the  corporation,  defendant  can- 
not sustain  an  objection  to  their  right  of  recovery,  on  the 
ground  that  they  are  not  such  officers,  de  jure,  without  evi- 
dence that  the  State  has  proceeded  to  a  judgment  of  ouster 
against  them.54 

44.  Evidence  of  Express  Authority. 

The  power  of  an  agent,  for  whatever  purpose,  may  be 
proved  by  a  vote  or  resolution  without  the  seal.55  The  fa- 


alone  relied  on,  such  election  or 
appointment  must  be  legally  es- 
tablished. 1  Dill.  M.  C.  295,  note, 
and  cases  cited. 

"Thus  the  authority  of  an  of- 
ficer or  agent  to  draw  bills,  may  be 
proved  by  showing  a  report  to 
the  board,  adopted  by  it,  contain- 
ing a  statement  of  the  drafts. 
Partridge  v.  Badger,  25  Barb.  173. 

83  Thus  it  is  sufficient  proof  of 
the  employment  of  the  plaintiff 
as  engineer  of  a  corporation,  to 
show  that  he  was  recognized  and 
consulted  by  the  officers  of  the 
company  as  its  agent,  and  that  his 
plans,  etc.,  were  accepted  and 
acted  upon.  2  Greenl.  Ev.,  13th 
ed.  87,  note,  citing  Moline  Water 
Power,  etc.,  Co.  v.  Nichols,  26 
111.  90.  So  the  presence  of  a  serv- 
ant on  a  steamer  is  some  evidence 
of  his  employment  there.  Svenson 
v.  Pacific  Mail  Steamship  Co., 


57  N.  Y.  108.  The  dress  of  a  rail- 
road brakejnan  indicates  his  char- 
acter as  such.  Hughes  v.  N.  Y.  & 
N.  H.  R.  R.  Co.,  36 'Super.  Ct. 
(J.  &  S.)  222.  Appearance  of 
clerk  behind  desk  is  some  evidence 
of  agency.  Leslie  v.  Knicker- 
bocker Ins.  Co.,  63  N.  Y.  27,  affi'g 
2  Hun,  616.  Person  at  work  on 
locomotive,  with  his  coat  off,  pre- 
sumed a  servant  of  the  company. 
McCoun  v.  N.  Y.  Central,  66  Barb. 
338. 

54  Trustees  of  Vernon  Soc.  v. 
Hills,  6  Cow.  23;  All  Saints'  Church 
v.  Lovett,  1  Hall,  198. 

"Green's  Brice's  Ultra  V.  365, 
n.*,  and  cases  cited.  For  the  rule, 
that  one  dealing  with  an  officer 
may  be  charged  with  notice  of 
limits  of  authority  hi  the  by-laws, 
etc.,  see  Dabney  v.  Stevens,  10  Abb. 
Pr.  N.  S.  39,  s.  c.,  2  Sweeny,  415. 

"The  mere  fact  that  a  corpora- 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  137 

miliar  rule  by  which  a  sealed  power  is  required  to  authorize 
an  agent  to  execute  a  sealed  instrument,  does  not  apply  to 
a  power  conferred  by  a  corporate  vote. 

45.  Implied  Scope  of  Authority. 

Acts  done  by  the  directors,  which  required  the  sanction 
of  a  meeting  of  the  corporation,  may  be  sustained  by  proof 
of  lapse  of  time  and  no  dissent  on  the  part  of  the  corpora- 
tion, or  from  their  not  producing  the  record  of  the  proceed- 
ings had  at  the  meeting  where  action  should  have  been  ta- 
ken.56 Upon  similar  principles,  acts  of  an  officer  or  agent 
may  be  sustained  by  proof  that  they  are  such  as  he  has  us- 
ually and  customarily  performed.  It  is  a  general  principle, 
applicable  to  open  and  ordinary  acts  hi  the  course  of  the 
corporate  business,  that  a  general  agency  is  defined,  not  by 
the  authority  which  the  agent  or  officer  receives  from  his 
principal,  but  by  that  which  the  latter  allows  the  former  ha- 
bitually to  assume  and  exercise.57  And  this  principle  ap- 
plies to  the  officer  of  a  municipal  corporation,  whose  duties 
are  not  defined  by  law,  at  least  so  far  as  to  throw  on  the 
city  the  burden  of  disproving  authority.58  Hence  authority 

tion  has  lost  money  does  not  sub-  Proof  that  an  agent  was  in  the 

ject    the    directors    to    individual  habit    of    executing    assignments 

liability  therefor."    Schmid  v.  Neu-  and  contracts  on  behalf  of  the  cor- 

berger,    174  App.   Div.   670,    160  poration,  with  the  knowledge,  as- 

N.  Y.  Supp.  701.  sent  and  acquiescence  of  the  board 

66 1  Redf.  on  Rys.  600  (3).  of  directors,  is  evidence  that  he  had 

A  director  whose  interest  hi  a  authority  to  execute  assignments 

matter  disqualifies  him  from  vot-  and  contracts.    Reid  v.  Clay,  134 

ing  upon  a  resolution  concerning  Cal.  207,  66  Pac.  Rep.  262. 

it  cannot  be  counted  for  the  pur-  M  Hall  v.  City  of  Buffalo,  2  Abb. 

pose    of    ascertaining    whether    a  Ct.  App.  Dec.  301. 

quorum  is  present  when  the  vote  Directors  of  a  corporation  are 

is  taken.     A  director  so  disquali-  simply  agents  selected  by  the  stock- 

fied  loses  pro  hac  vice  his  character  holders   of   the   corporation,    and 

as  a  director.     Enright  v.  Heck-  being  limited  in  the  exercise  of 

scher,    240    Fed.    Rep.    863,    153  power  by  the  by-laws  they  cannot 

C.  C.  A.  549.  create    an    office    not    authorized 

57  Bridenbecker    v.    Lowell,    32  thereby.    Kramer  v.   State    (Ala. 

Barb.  9, 18,  ALLEN,  J.  App.),  75  So.  Rep.  185. 


138  ACTIONS   BY   AND   AGAINST   CORPORATIONS 

from  the  corporation  for  an  act  of  its  officer  may  be  proved 
by  showing  that  he  had  openly  exercised  the  power,  and  by 
showing  either  corporate  acts  from  which  it  must  be  inferred 
that  the  corporation  or  the  directors,  as  the  case  may 
be,  must  have  contemplated  the  legal  existence  of  the  nec- 
essary delegated  authority  for  the  purpose,59  or  that,  with 
knowledge  of  the  act,  they  affirmatively  ratified  it  or  tacitly 
acquiesced  in  it.  Especially  hi  respect  to  such  of  the  ordi- 
nary powers  of  business  corporations  as  are  by  common  us- 
age, if  not  of  necessity,  exercised  by  means  of  officers  and 
agents — such  as  the  implied  power  of  a  trading  company  to 
make  bills  and  notes — the  law  presumes,  in  the  absence  of 
evidence  to  the  contrary,  that  general  authority  to  do  such 
acts,  when  the  exigencies  of  the  company  require,  has  been 
duly  vested  in  the  person  who  has  been  held  out  as  their 
agent  and  allowed  to  do  such  acts.60  And  the  jury  may 
presume  the  authority  in  such  case,  for  an  act  done  openly 
in  the  usual  course  of  business  at  the  office  of  the  company, 
without  evidence  of  actual  knowledge  on  the  part  of  the 
company  or  directors,  or  of  express  ratification;61  or,  where 

59  Olcott  v.  Tioga  R.  R.  Co.,  27      its  officers,   agents,   tenants,   etc. 
N.  Y.  546,  559,  and  cases  cited.          Ang.  &  A.  on  Corp.  159,  §  186. 

Evidence  that  there  was  no  reso-  In  the  absence  of  any  evidence, 

lution  of  the  directors  of  a  cor-  it  will  not  be  presumed  that  the 

poration  authorizing  its  president  general  manager  of  a  corporation 

to  make  a  contract,  is  not  prima  has  no  authority  to  make  a  con- 

facie  evidence,  that  the  contract  tract  for  the  sale  of  certain  mer- 

was  not  hi  fact  authorized.    ^Etna  chandise  in  which  the  corporation 

Explosives  Co.  v.  Bassick,  176  App.  was  dealing.    Walnut  Ridge  Mer- 

Div.  577,  163  N.  Y.  Supp.  917.  cantile  Co.  v.  Cohn,  79  Ark.  338,  96 

60  Narragansett  Bk.  v.   Atlantic  S.  W.  Rep.  413. 

Silk  Co.,  3  Mete.  289,  SHAW,  Ch.  J.  61  Conover  v.  Mut.  Ins.  Co.,  1 

So  the  authority  of  an  agent  to  dis-  N.  Y.  292.    Contra,  1  Redf.  on  Rw. 

seize  so  as  to  acquire  an  adverse  590. 

possession  for  the  corporation,  and  "Any  person  taking  checks  made 

the  acceptance  of  his  act,  may  be  payable  to  a  corporation,   which 

proved  by  the  acts  and  conduct  of  can  act  only  by  agents  does  so  at 

the    corporation,    whether    mani-  his  peril  and  must  abide  by  the 

fested  by  it  collectively  or  through  consequences  if  the  agent  who  in- 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  139 

knowledge  and  acquiescence  is  shown,  they  may  presume 
the  authority  from  the  open  exercise  of  substantially  similar 
powers — for  example,  they  may  presume  authority  to  buy 
gold  from  the  usual  buying  of  exchange.62 

46.  Authority  Implied  in  Title  of  Office. 

In  the  absence  of  any  other  evidence  of  authority,  the 
law  presumes  certain  limits  as  marking  the  scope  of  the  au- 
thority of  various  officers,  varying  both  with  the  character 
of  the  corporation,  and  the  public  and  general  usages  of  cor- 
porate business  within  the  jurisdiction.  It  must  suffice  here 
to  say  that  it  is  now  generally  agreed  that  hi  the  absence  of 
any  statute  to  the  contrary,  the  president,  together  with 
the  secretary  or  cashier,  are  presumed,  in  favor  of  third  per- 
sons purchasing  in  good  faith  and  for  value,  to  have  power 
to  convey  property  of  the  corporation  in  its  name,  in  the 
ordinary  course  of  its  business.  Other  officers,  except  the 
board  of  directors,  have  not  this  power.  The  president  has 
presumable  authority  to  direct  a  suit  to  be  brought; 63  and 

dorses  the  same  is  without   au-  authority  to  do  it,  and  whoever 

thority,  unless  the  corporation  is  would   assert  the   contrary   must 

negligent  or  is  otherwise  precluded  prove  it.    Cushman  t1.  Cloverland 

by  its   conduct  from   setting   up  Coal  &  Mining  Co.,  170  Ind.  402, 

such  lack  of  authority."    Standard  84  N.  E.  Rep.  759,  16  L.  R.  A. 

Steam  Specialty  Co.  v.  Corn  Ex-  (N.  S.)  1078,  127  Am.  St.  Rep.  402. 

change  Bank,  220  N.  Y.  478,  116  Officers  of  corporations  organized 

N.  E.  Rep.  386.  for,   and  engaged  in,   commercial 

62  Merchants'     Bank     v.     State  pursuits,  without  special  authority, 
Bank,  10  Wall.  104.  cannot  charge  the  corporation  with 

63  American  Ins.  Co.  v.  Oakley,  9  the  employment  of  physicians  and 
Paige,  496;  Mumford  v.  Hawkins,  surgeons  to  attend  upon  sick  or 
5  Den.  355.  injured   employees.     Cushman   v. 

When  the  president  or  general  Cloverland   Coal   &   Mining   Co., 

manager  of  a  corporation  does  an  170  Ind.  402,  84  N.  E.  Rep.  759, 

act  within  the  domain  of  the  gen-  127  Am.  St.  Rep.  402,  16  L.  R.  A. 

eral  objects  or  business  of  the  cor-  (N.  S.)  1078. 

poration,  and  within  the  scope  of  Where  the  president  of  a  cor- 

the  usual  duties  of  the  chief  officer,  poration  is  given  general  manage- 

it  will  be  presumed  that  he  had  ment  and  control  of  its  property 


140 


ACTIONS   BY   AND    AGAINST   CORPORATIONS 


so  has  the  treasurer  or  cashier,  upon  things  in  action  stand- 


and  affairs,  the  corporation  is  prima 
facie  bound  by  contracts  entered 
into  by  him  in  the  name  of  the 
corporation.  Third  parties  are 
not  bound  by  secret  limitations 
of  his  authority  contained  in  the 
by-laws.  ^Etna  Explosives  Co.  v. 
Bassick,  176  App.  Div.  577,  163 
N.  Y.  Supp.  917. 

Where  the  evidence  makes  it 
plain  that  the  secretary  of  a  cor- 
poration has  been  entrusted  with 
the  general  management  the  name 
with  which  his  office  is  labeled  is 
of  small  moment.  The  inference 
of  authority  is  to  be  drawn  from 
the  things  he  was  allowed  to  do. 
Barkin  Construction  Co.  v.  Good- 
man, 221  N.  Y.  156, 116  N.  E.  Rep. 
770. 

A  president  of  a  corporation  who 
is  clothed  by  its  charter  or  by-laws 
with  the  management  of  every  de- 
partment has  implied  authority  to 
commence  an  action  for  conversion 
of  corporate  funds.  No  formal 
resolution  of  the  board  of  directors 
is  necessary.  Green  Bay  Fish  Co. 
v.  Jorgensen,  165  Wis.  548,  163 
N.  W.  Rep.  142. 

Where  a  deed  in  its  body  pur- 
ports to  be  the  deed  of  a  corpora- 
tion, and  its  attesting  clause  recites 
that  it  is  signed  by  the  cor- 
poration, and  that  its  seal  is  af- 
fixed, the  authority  of  its  president 
to  execute  the  same  is  presumed 
where  he  signed  his  name  as  such 
officer  after  the  corporate  name,  not 
using  the  word  "by"  in  connection 
therewith.  Bickart  v.  Henry  (Ind. 
App.),  116  N.  E.  Rep.  15. 


The  president  of  a  corporation 
by  virtue  of  his  office  merely  is 
not  authorized  or  does  not  have 
the  power  to  execute  a  deed  in  its 
behalf  conveying  its  real  estate. 
Bickart  v.  Henry  (Ind.  App.),  116 
N.  E.  Rep.  15. 

An  order  for  goods  written  upon 
the  letter  head  of  a  corporation 
and  signed  by  one  as  president  is 
not  conclusive  evidence  that  the 
order  is  for  the  corporation.  Oil- 
Well  Supply  Co.  v.  West  Hunts- 
vffle  Cotton  Mills  Co.  (Ala.),  73 
So.  Rep.  899. 

Where  the  president  of  a  cor- 
poration on  different  occasions  ad- 
vanced money  to  it  for  the  purpose 
of  meeting  its  expenses,  for  which 
loans  he  executed  notes  as  presi- 
dent of  the  corporation  payable 
to  himself  as  an  individual,  he 
had  implied  authority  so  to  act 
when  it  was  the  common  knowledge 
of  the  directors  and  stockholders 
that  he  was  doing  so  and  no  objec- 
tion was  ever  made.  Their  ac- 
quiescence amounted  to  a  complete 
ratification  of  the  acts,  and  the 
corporation  is  estopped  from  at- 
tacking the  validity  of  the  notes 
and,  in  the  absence  of  fraud, 
creditors  of  the  corporation  are 
also  estopped  from  questioning 
them.  In  re  Eastman  Oil  Co.,  238 
Fed.  Rep.  416. 

Although  there  is  no  direct  evi- 
dence showing  the  authority  of  the 
president  of  a  corporation  to  exe- 
cute an  instrument  he  will  be 
presumed  to  have  had  authority 
so  to  do  if  it  bears  the  seal  of  the 


ACTIONS   BY   ANI>  AGAINST   CORPORATIONS 


141 


ing  in  his  name  as  such,64  or  intrusted  to  his  management 
in  the  ordinary  course  of  business.65    The  vice-president's 


corporation  and  is  properly  signed. 
Stauffer  v.  Koch,  225  Mass.  525, 
114  N.  E.  Rep.  750. 

In  the  case  of  a  non-business  cor- 
poration the  production  of  a  note 
signed  by  its  president  or  other 
officers  does  not,  in  itself  alone 
make  out  a  prima  facie  case  against 
the  corporation,  but  the  production 
of  a  promissory  note  purporting 
to  have  been  made  and  delivered 
by  a  business  corporation  for  a 
consideration  and  signed  by  the 
president  thereof  in  the  name  of 
the  corporation,  will  make  out  a 
prima  facie  case.  Westchester 
Mortgage  Co.  v.  Thomas  B.  Mc- 
Intire,  Inc.,  174  App.  Div.  446, 
161  N.  Y.  Supp.  390. 

Where  a  contract  is  made  in  the 
name  of  a  business  corporation 
by  its  president,  which  is  of  such 
a  nature  that  the  directors  of  the 
corporation  could  authorize  or 
ratify  it  legally,  there  it  is  not 
necessary  to  show  prima  facie  that 
the  contract  was  in  fact  authorized 
by  specific  authority  of  the  cor- 
poration, but  the  want  of  authority 
must  be  pleaded  and  proved  as  a 
defense.  Westchester  Mortgage 
Co.  v.  Thomas  B.  Mclntire,  Inc., 
174  App.  Div.  446,  161  N.  Y. 
Supp.  390. 

The  president  of  a  corporation 
has  no  inherent  power  by  virtue 
of  his  office  to  execute  commercial 
paper  for  it.  Bloomingdale  v. 
Cushman  (Minn.),  159  N.  W. 
Rep.  1078. 

•«  Howard  v.  Hatch,  29  Barb.  297. 


Where  the  evidence  shows  that 
the  proceeds  of  a  note  signed  by 
the  treasurer  of  a  corporation  hi 
the  corporate  name,  were  received 
by  the  corporation  or  that  the  cor- 
poration received  the  benefit 
thereof,  it  may  not  assert  the  lack 
of  authority  in  the  treasurer  to 
sign  the  note.  Hubbard  v.  Syenite- 
Trap  Rock  Co.,  178  App.  Div.  531, 
165  N.  Y.  Supp.  486. 

The  treasurer  of  a  manufactur- 
ing corporation  has  no  implied 
power  by  virtue  of  his  office  to 
make  promissory  notes  in  its  name, 
and  no  presumption  of  such  power 
exists.  In  an  action  against  the 
corporation  upon  such  a  note  the 
plaintiff  must  show  either  that 
the  defendant's  treasurer  did  have 
such  authority,  or  that  the  de- 
fendant was  estopped  from  deny- 
ing it.  Hubbard  v.  Syenite-Trap 
Rock  Co.,  178  App.  Div.  531,  165 
N.  Y.  Supp.  486. 

The  authority  of  a  treasurer  of 
a  corporation  to  sign  an  order  on 
a  creditor  for  money  due  where 
such  authority  has  not  been  ques- 
tioned by  the  corporation,  will  be 
presumed  until  proven  otherwise. 
Wright  Ogden  Co.  v.  Strayer,  165 
N.  Y.  Supp.  569. 

65  Bridenbecker  t1.  Lowell,  32  Id. 
9.  See  many  of  the  conflicting 
cases  on  the  implied  powers  of 
cashiers  collected  hi  3  Am.  Law 
Rev.  612. 

One  is  not  chargeable  with  the 
duties  and  obligations  of  a  director 
of  a  corporation  until  he  is  noti- 


142  ACTIONS   BY   AND    AGAINST   CORPORATIONS 

authority  needs  some  evidence  of  usage  or  other  sanction.66 
A  clerk  acting  as  an  officer,  in  the  officer's  absence,  is  not 
presumed  to  have  any  other  powers  than  necessary  for  the 
usual  and  ordinary  business  in  his  temporary  service.67  The 
powere  of  superintendents  and  managing  agents  depend  too 
much  upon  special  usages  to  be  here  discussed.68  A  " finan- 
cial agent"  may  be  presumed  empowered  to  negotiate  a 
loan,  but  not  to  state  an  account.69 

47.  Testimony  of  Officer  or  Agent. 

The  declarations  of  the  officer  or  agent  cannot  suffice  to 
show  the  existence  or  scope  of  his  authority, 70  but  he  may 
be  called  as  a  witness  to  prove  it.  If  implied  authority  is 
essential  to  the  cause  of  action,  he  should  be  required  to 
state  the  facts  relied  on  as  raising  implied  authority,  and 
should  not  be  asked  whether  or  not  he  had  authority  to  do 
the  act  in  question,  for  this  is  asking  for  a  conclusion.71  But 
to  disprove  alleged  express  parol  authority,  the  testimony 
of  the  president  that  none  was  given  is  competent.72 

fied  of  his  election  as  such.    Wood-  contract  unless  it  is  within  its  cor- 

man  v.  Butterfield  (Me.),  101  Atl.  porate  powers.    West  Penn  Chem- 

Rep.  25.  ical  &  Mfg.  Co.  v.  Prentice,  236 

«  Shimmel  ».  Erie  Ry.  Co.,  5  Fed.  Rep.  891,  150  C.  C.  A.  153. 

Daly,  396;  and  see  5  Bosw.  293.  89  Grant      t>.      Franco-Egyptian 

No  presumption  of  authority  to  Bank,  Eng.  Ct.  of  App.  1877. 

sell  the  lands  of  a  corporation  arises  70  Stringham  v.  St.  Nicholas  Ins. 

from  the  general  character  of  the  Co.,  4  Abb.  Ct.  App.  Dec.  315. 

agency  of  one  who  is  vice-president  Declarations   of   the   vice-presi- 

and  general  manager  of  a  corpora-  dent  that  he  had  authority  to  act 

tion.    Hurlbut  v.  Gainor,  45  Tex.  constitute  no  evidence  against  the 

Civ.  App.  588,  103  S.  W.  Rep.  409.  corporation  unless  brought  to  its 

"  Potter  t;.  Merchants'  Bank,  28  notice    and    ratified.      Henderson 

N.  Y.  647.  Mercantile  Co.  v.  First  National 

98  See    Abb.     Dig.     Corp.,    tit.  Bk.,  100  Tex.  344,  99  S.  W.  Rep. 

Agents,  Officers,  President,  etc.  850,  rev'g  (Civ.  App.)  93  S.  W. 

Although  the  president  of  a  cor-  Rep.  510. 

poration  is  its  general  administra-  71  Prov.  Tool  Co.  v.  U.  S.  Manuf . 

tive  agent,  his  powers  are  by  no  Co.,  120  Mass.  35;  Short  Mountain 

means  without  limits;  and  he  can-  Coal  Co.  v.  Hardy,  114  Id.  197. 

npt    bind    the    corporation    to    a  72  Graves  v.  Waite,  59  N.  Y.  161. 


ACTIONS   BY   AND   AGATNST   CORPORATIONS 


143 


48.  Ratification. 

Ratification  by  the  corporation  or  its  officers  may  be 
proved  or  presumed  in  the  same  manner  as  in  case  of  agen- 
cies for  natural  persons.  It  may  be  inferred  from  informal 
acquiescence  merely,  after  notice  of  the  facts,73  of  actual  in- 
tent to  ratify  is  not  essential.74  And  an  express  ratification 


"Olcott  v.  Tioga  R.  R.  Co., 
27  N.  Y.  546.  affi'g  40  Barb.  179; 
People  ex  rel.  Smith  v.  Flagg,  17 
N.  Y.  584,  rev'g  16  Barb.  503; 
Hoyt  v.  Thompson,  19  N.  Y.  207; 
Abb.  Dig.  of  Corp.,  tit.  Ratifica- 
tion. 

When  a  railroad  company  does 
not  promptly  repudiate  the  acts 
of  its  agents  which  are  brought  to 
its  notice,  the  assumption  is  that 
the  agent  had  authority  and  the 
corporation  will  be  bound  thereby. 
Freygang  v.  Vera  Cruz,  etc.,  R. 
Co.,  154  Fed.  Rep.  640,  83  C.  C.  A. 
414. 

Misappropriation  of  corporate 
funds  cannot  be  ratified  as  against 
the  corporation  by  a  majority  of 
the  stockholders  or  as  against  the 
rights  of  the  creditors  by  a  vote 
of  all  the  stockholders.  Martin- 
dale  v.  DeKay,  166  N.  Y.  Supp. 
405. 

Misappropriation  of  the  funds 
of  a  corporation  cannot  be  ratified 
as  against  the  rights  of  creditors 
by  all  the  stockholders.  Such  a 
ratification  even  by  all  but  one  of 
the  stockholders  would  not  be 
binding  upon  the  corporation  it- 
self. E.  Moch  Co.  v.  Security 
Bank  of  New  York,  176  App.  Div. 
842,  163  N.  Y.  Supp.  277. 

The  action  of  a  board  of  direct- 
ors in  granting  compensation  to 


agents  and  employees  who  are 
also  directors,  even  though  it  be 
ratified  and  made  valid  by  ac- 
quiescence of  the  stockholders,  is 
subject  to  review  by  a  court  of 
equity  when  called  in  question  by 
a  minority  stockholder.  Setter 
v.  Coatsville  Boiler  Works  (Pa.), 
101  Atl.  Rep.  744. 

Where  information  has  been 
withheld  from  minority  stock- 
holders as  to  the  acts  of  its  offices 
no  ratification  of  such  acts  can  be 
made  by  the  other  stockholders 
alone.  Du  Pont  v.  Du  Pont,  242 
Fed.  Rep.  98. 

74  Hazard  v.  Spears,  2  Abb.  Ct. 
App.  Dec.  353. 

The  acceptance  of  the  benefits 
of  the  unauthorized  acts  of  an 
agent  constitute  a  ratification  by 
the  corporation,  whether  it  in- 
tended to  ratify  or  not.  Bauer- 
smith  v.  Extreme  Gold  Mining, 
etc.,  Co.,  146  Fed.  Rep.  95. 

Where  it  appeared  that  an  officer 
of  a  corporation  had  undertaken 
to  renew  a  lease,  and  the  corpora- 
tion continued  to  occupy  the  prem- 
ises and  paid  rent  pursuant  to  the 
renewal  agreement,  the  adoption 
or  ratification  of  the  contract  was 
sufficiently  shown.  Fudickar  v. 
Glenn,  237  Fed.  Rep.  808,  151 
C.  C.  A.  50. 


144 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


is  competent,  although  not  communicated.75  But  the  rat- 
ification may  be  rebutted  by  evidence  either  of  actual  mis- 
take or  of  incomplete  knowledge  of  the  facts.76 

VH.  ADMISSIONS,  DECLARATIONS  AND  NOTICE 

49.  Admissions  and  Declarations  of  Members. 

The  admissions  and  declarations  of  a  member  of  a  corpora- 
tion, even  if  made  at  a  corporate  meeting,  are  not  competent 
evidence  against  the  corporation,  unless  made  concerning 
some  transaction  in  which  such  member  was  the  authorized 
agent  of  the  corporation;77  and  in  such  case  their  competency 
depends  on  the  rules  applicable  to  the  admissions  of  officers 
and  agents. 

50.  Admissions  and  Declarations  of  Officers  and  Agents 
Authorized  to  Speak. 

Evidence  of  declarations  and  admissions  made  by  offi- 


"  Dent  v.  N.  A.  S.  Co.,  49  N.  Y. 
390. 

Evidence  of  knowledge,  actual 
or  constructive,  on  the  part  of  the 
board  of  directors  is  sufficient  to 
warrant  the  finding  that  the  cor- 
poration was  bound  on  the  con- 
tract. Smith  v.  Bank  of  New  Eng- 
land, 72  N.  H.  4,  54  Atl.  Rep.  385. 

76Owensboro  Savings  Bank  v. 
Western  Bank,  4  Law  &  Eq.  695, 
and  cases  cited,  47  N.  Y.  199. 

There  can  be  no  ratification  by 
the  board  of  directors  unless  they 
have  full  and  complete  knowledge 
of  the  terms  and  conditions  of  the 
contract  proposed  to  be  ratified. 
Conqueror  Gold  Mining,  etc.,  Co. 
v.  Ashton,  39  Colo.  133,  90  Pac. 
Rep.  1124. 

Where  an  officer  and  general 
manager  of  a  corporation  imposes 
upon  it  obligations  forbidden  by 


its  charter  he  is  liable  for  the  dam- 
ages, if  any,  resulting  to  the  com- 
pany therefrom.  His  acts  could 
only  be  ratified  by  the  unanimous 
action  of  all  the  stockholders  after 
full  knowledge  of  the  facts,  and 
the  burden  is  upon  him  to  show 
such  ratification.  Fergus  Falls 
Woollen  Mills  Co.  v.  Boyum 
(Minn.),  162  N.  W.  Rep.  516. 

"  2  R.  S.  N.  Y.  407,  §  80;  RED- 
FIELD,  in  1  Greenl.  Ev.,  13th  ed. 
206,  §  175;  1  Phill.  Ev.  487,  note 
134,  30  Me.  157. 

Private  individual  knowledge  of 
an  officer  of  a  corporation  acquired 
in  the  transaction  of  his  own  busi- 
ness while  dealing  as  if  he  had  no 
official  relation  to  the  corporation, 
will  not  operate  as  notice  to  the 
corporation.  Bank  of  Florala  v. 
American  Nat.  Bank  (Ala.),  75 
So.  Rep.  310. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  145 

cers  and  agents  of  corporations  is  competent  against  the  cor- 
poration in  two  classes  of  cases.  First,  when  the  declara- 
tions were  made  by  an  officer  or  agent  hi  response  to  timely 
inquiries  properly  addressed  to  him,  and  relating  to  matters 
under  his  charge,  in  respect  to  which  he  is  authorized  in  the 
usual  course  of  business  to  give  information.78  Upon  this 
principle,  what  is  said  by  the  proper  officer  or  agent  to  re- 
ceive and  act  on  a  demand  or  complaint — whether  it  be  the 
secretary  or  treasurer  who  signed  a  money  obligation,  and 
to  whom  it  is  presented  for  payment; 79  or  the  general  su- 
perintendent or  managing  agent  to  whom  complaint  is  duly 
made  of  a  nuisance  caused  by  the  company's  property,  or 
of  the  conduct  of  its  servants 80  or  by  the  proper  conductor, 
baggage  master,  or  station  agent,  on  inquiries  made  with  re- 
sonable  prompitude  for  lost  baggage  or  freight; 81  or  what 
is  said  upon  the  like  inquiry  by  a  subordinate  to  whom  the 
inquirer  is  referred  for  information  by  the  principal  officer 
of  the  department 82 — is  competent  against  the  corporation. 

78  Thus,  in  a  bank's  action  on  a  company.  Baltimore,  etc.,  Re- 
note  held  by  it,  an  admission  by  lief  Ass'n  v.  Post,  122  Pa.  St.  579, 9 
the  president  that  the  note  had  been  Am.  St.  Rep.  147,  15  Atl.  Rep.  885. 
paid,  made  to  the  defendant,  in  "Pusey  v.  N.  J.,etc.,  R.  R.  Co., 
consequence  of  an  examination  of  14  Abb.  Pr.  (N.  S.)  441. 
accounts,  caused  by  the  president's  M  McGenness  v.  Adriatic  Mills, 
asking  for  payment  and  the  de-  116  Mass.  177;  Malecek  v.  Tower 
fendant's  insisting  that  he  had  al-  Grove  R.  Co.,  57  Mo.  17.  Evi- 
ready  paid,  is  competent  evidence  dence  of  custom  of  agent  of  re- 
for  the  defendant,  as  having  been  ceiving  railroad  not  to  receive 
made  while  acting  within  the  scope  freight  unless  in  good  condition, 
of  a  bank  president's  ordinary  and  to  check  it  "all  right,"  if  in 
powers.  Bank  of  Monroe  v.  Field,  good  condition,  is  admissible  to 
2  Hill,  445,  NELSON,  Ch.  J.  Com-  prove  that  goods  were  hi  good  con- 
pare  Horrigan  v.  First  Nat.  Bank,  dition  when  received  by  him. 
5  Reporter,  188.  A  paymaster  Knott  v.  Raleigh,  etc.,  G.  R.  Co., 
of  a  railroad  company  is  a  serv-  98  N.  C.  73,  2  Am.  St.  Rep.  321, 
ant,  and  not  an  agent,  of  the  com-  3  S.  E.  Rep.  735. 
pany,  he  having  no  discretion,  and  81  Morse  v.  Conn.  Riv.  R.  R.  Co., 
his  duties  being  purely  ministerial,  Q  Gray,  450. 
and  therefore  his  loose  declara-  82Gott  v.  Dinsmore,  111  Mass, 
tions  are  not  binding  upon  the  51. 


140  ACTIONS   BY   AND   AGAINST   CORPORATIONS 

But  the  officer  or  agent  must  be  one  having  the  duty  to  per- 
form. A  communication  by  an  officer  of  what  others  have 
done,  on  an  application  he  could  not  or  would  not  act  on, 
is  not  within  the  rule.83  Thus,  in  an  action  on  a  draft,  drawn 
by  one  officer  of  a  corporation  and  accepted  by  him  in  the 
name  of  the  corporation,  the  declarations  of  another  officer 
thereof,  made  after  such  acceptance,  are  inadmissible  in  ev- 
idence to  show  the  former  officer's  authority  to  bind  the 
corporation.84  Evidence  that  a  third  person  by  his  decla- 
rations and  acts  assumed  to  be  the  agent  of  a  corporation 
does  not  amount  to  proof  of  such  agency.85 

51.  Admissions  and  Declarations  Made  as  Part  of  the 

Res  Gestae. 

Again,  the  declarations  and  admissions  of  officers  and 
agents  may  also  be  proved  against  the  corporation  as  part  of 
the  res  gestce,  but  only  when  made  during  the  agency,  and  hi 
regard  to  a  transaction  depending  at  the  very  time,  so  as  to 
constitute  a  part  of  the  act.86  They  cannot  be  admitted  on 
this  ground,  if  subsequently  made,  as  a  narrative  of  a  past 
act,  even  though  they  relate  to  the  official  duty  of  the 
declarant,  or  were  intended  in  the  interest  of  the  corpora- 

83  Bank  of  Grafton  v.  Woodward,  Herkimer,  44  N.  Y.  22.     A  cor- 
5  N.  H.  301;  Soper  v.  Buffalo,  etc.,  poration  cannot  invoke  §  829,  Code 
R.  R.  Co.,  19  Barb.  310.  Civ.  Pro.,  in  order  to  exclude  testi- 

84  Rumbough    v.    Southern    Im-  mony  of  a  conversation  had  by  a 
provement  Co.,  112  N.  C.  751,  34  party  with  its  managing  director, 
Am.  St.  Rep.  528,  17  S.  E.  Rep.  as  that  section  has  no  application 
536.  to  personal  transactions  with  de- 

85  Eaton  v.  Granite  State  Prov.  ceased  officers  or  agents  of  a  cor- 
Ass'n,   89   Me.  58,  35  Atl.  Rep.  poration.      Flaherty    v.    Herring- 
1015.  Hall-Marvin   Safe   Co.,   22   Misc. 

85  Anderson  v.  Rome,  etc.,  R.  R.  (N.  Y.)  329. 

Co.,  54  N.  Y.  334,  and  cases  cited.  A  telephone  conversation  ad- 
Compare  Norwich  Transp.  Co.  v.  mitted  as  part  of  res  gestce.  Gen- 
Flint,  13  Wall.  3;  Baptist  Ch.  of  eral  Hospital  Society  v.  New  Haven 
Brooklyn  v.  Brooklyn  Fire  Ins.  Rendering  Co.,  79  Conn.  581, 
Co.,  28  N.  Y.  153;  Superintendent  65  Atl.  Rep.  1065,  118  Am.  St. 
of  Cortland  v.  Superintendent  of  Rep.  173,  9  Ann.  Cas.  168. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


147 


tion.87  Hence  the  declarations  of  members  of  a  board  or 
committee  as  to  what  the  board  or  committee  have  done, 
are  not  competent.88  It  must  affirmatively  and  explicitly 
appear  that  the  declaration  was  made  at  the  time,  and  not 
afterwards,  or  its  reception  in  evidence  will  be  error.89  The 
rule  excludes  acts  done  as  well  as  declarations  made  subse- 
quent to  the  controversy.90 


52.  Admissions  and  Declarations  before  Incorporation. 

Where  a  corporation  adopts  and  acts  on  the  negotiations 
and  inchoate  contracts  of  the  promoters  who  formed  it,  then* 
acts  and  declarations,  so  far  as  they  would  have  been  com- 
petent against  themselves,  are  competent  against  the  cor- 


87  First  Nat.  Bank  v.  Ocean  Nat. 
Bank,  60  N.  Y.  278;  Goetz  v.  Bank 
of  Kansas  City,  119  U.  S.  551,  560; 
Barker  v.  St.  Louis,  etc.,  R.  Co., 
126  Mo.  143,  47  Am.  St.  Rep.  646, 
28  S.  W.  Rep.  866;  Merchants'  Nat. 
Bank  v.  Clarke,  139  N.  Y.  314,  319, 
34  N.  E.  Rep.  910;  Cosgray  v. 
New  England  Piano  Co.,  22  App. 
Div.  (N.  Y.)  455;  Gilmore  v. 
Mittineague  Paper  Co.,  169  Mass. 
471,  48  N.  E.  Rep.  623;  East 
Tennessee  Telephone  Co.  v.  Simms ' 
Ex'r,  99  Ky.  404,  36  S.  W.  Rep. 
171.  "Here,  it  is  true,  the  dec- 
larations introduced  were  those 
of  the  president.  But  the  name  of 
the  officer  cannot  change  the  rule. 
It  is  a  question  not  of  name  but  of 
authority.  Officers  of  corporations, 
from  the  highest  to  the  lowest,  are 
only  the  agents  of  such  corpora- 
tions. What  acts  they  perform 
and  what  contracts  they  make  for 
their  principals  are  binding  if 
within  the  scope  of  their  particular 
authority,  express  or  implied;  but 


the  scope  of  the  authority  of  one 
officer  or  agent,  as  to  a  past  trans- 
action at  least,  cannot  be  proved 
by  the  unsworn  declaration  of  an- 
other officer  or  agent."  Rum- 
bough  v.  Southern  Improvement 
Co.,  112  N.  C.  751,  34  Am.  St. 
Rep.  528, 17  S.  E.  Rep.  536.  Dec- 
larations of  a  servant  are  more 
jealously  guarded  as  evidence 
against  the  principal  than  are  those 
of  an  agent.  Baltimore,  etc.,  Re- 
lief Ass'n  v.  Post,  122  Pa.  St.  579, 
9  Am.  St.  Rep.  147,  15  Atl.  Rep. 
885. 

88  Soper  v .  Buffalo,  etc.,  R.  R.  Co., 
above;  Jex  v.  Board  of  Education,  1 
Hun,  157.  Compare,  however,  as 
to  fraud  promoted  by  individual 
members,  Marigny  v.  Union  Bank, 
5  Rob.  (La.)  354. 

^Whitaker  v.  8th  Ave.  R.  R. 
Co.,  51  N.  Y.  299,  rev'g  5  Robt. 
650. 

90  Clapper  v.  Town  of  Water- 
ford,  131  N.  Y.  382,  390,  30  N.  E. 
Rep.  240. 


148  ACTIONS   BY   AND   AGAINST   COKPORATIONS 

poration.  So  where  a  corporation  is  formed  by  the  con- 
solidation of  other  companies,  thereby  succeeding  to  their 
rights,  the  previous  admissions  and  declarations  of  the 
previous  corporation  binding  on  itself  in  respect  to  such 
right,  are  competent,  though  slight  evidence  against  the 
new  corporation.91  Such  cases  are  not  regarded  as  falling 
within  the  principle  applicable  to  assignor's  declarations,  for 
there  is  an  identity  of  interest.92  The  new  organization  is 
the  same  actual  entity  under  a  new  legal  form. 

63.  Notice. 

Notice  to  a  corporation  can  be  proved  by  showing  notice 
given  either,  1,  to  its  officer  or  agent,  who  was  at  the  tune 
acting  for  the  corporation  in  the  matter  in  question,  and 
within  the  range  of  his  authority  or  supervision;  or,  2,  to  one 
whose  duty  it  was  to  receive  and  communicate  such  informa- 
tion to  his  principal;  or,  3,  to  the  board  of  directors,  or  a 
previous  board;93  but  not  to  a  single  director,  unless  he  is 
the  one  charged  with  the  duty  to  be  affected  by  the  notice,  or 
acting  in  the  board  at  the  tune,  upon  the  matter  in  ques- 

91  Phil.,  etc.,  R.  R.  Co.  v.  How-      or  the  individual  knowledge  of  the 
ard,  13  How.  (U.  S.)  333.  inhabitants    or    voters,    does    not 

Declarations  and  admissions  of  bind    or    affect    the    corporation, 

the    promoter    of    a    corporation  The  mayor  is  chief  executive  officer 

made  during  negotiations  by  him  of  the  city,  and  notice  to  him  of  a 

are  admissible  against  the  subse-  nuisance    is    sufficient,    when    it 

quently  formed  corporation.    Chil-  would  not  be  to  the  clerk,  who  is 

cott  v.  Washington  State  Coloni-  only  a  recording  officer,  not  au- 

zation  Co.,  45  Wash.  148,  88  Pac.  thorized  to  act  upon  the  notice. 

Rep.  113.  1  Dill.  M.  C.  296,  note. 

92  See  ch.  1,  p.  15.  Where  the  officer  of  a  corporation 

93  Fulton  Bank  v.  N.  Y.  &  Sharon  is  engaged  in  doing  an  act  which  is 
Canal  Co.,  4  Paige,  127;  s.  p.,  34  against  the  corporation's  interest, 
N.  Y.  30,  84;  Whart.  Ag.,  §§  184,  his  knowledge  cannot  be  imputed 
673;  Abb.  Dig.  of  Corp.,  tit.  Notice,  to  the  corporation.    Brooklyn  Dis- 
Where  the  officers  or  agents  of  a  tilling  Co.  v.  Standard  Distilling, 
public  corporation  have  no  power  etc.,  Co.,  120  N.  Y.  App.  Div.  237, 
or  duties  with  respect  to  a  given  105  N.  Y.  Supp.  264. 

matter,  their  individual  knowledge 


ACTIONS    BY   AND   AGAINST   CORPORATIONS 


149 


tion.94  For  the  purpose  of  proving  such  notice,  evidence  of 
the  declarations  and  admissions  of  the  officer  or  agent  in 
question  is  competent,  within  the  limits  previously  stated.95 

Vin.  BOOKS  AND  PAPERS 

54.  Corporation  Books  and  Papers  as  Evidence. 

The  traditional  statement  found  in  many  authorities,96 


"North  Riv.  Bk.  v.  Aymar,  3 
Hill,  262;  Bank  of  U.  S.  v.  Davis, 
2  Id.  451.  Compare  U.  S.  Ins.  Co. 
u.-Shriver,  3  Md.  Ch.  381. 

Notice  to  a  director  or  stock- 
holder before  incorporation  will 
not  affect  the  corporation.  If  no- 
tice is  given  to  a  director  it  must 
be  shown  that  it  is  his  proper 
business  to  attend  to  the  matter 
in  reference  to  which  the  notice  is 
given.  Reed  v.  Munn,  148  Fed. 
Rep.  737,  80  C.  C.  A.  215. 

Notice  to  a  director  when  acting 
solely  in  his  private  interest,  is 
not  notice  to  the  corporation  of 
which  said  director  is  an  officer. 
Allmon  v.  Salem  Building  &  Loan 
Ass'n,  275  111.  336,  114  N.  E.  Rep. 
170. 

The  mere  fact  that  a  director 
of  a  corporation  has  knowledge  of 
a  fact  does  not  charge  the  corpora- 
tion with  such  notice.  To  do  so, 
the  director  must  have  acquired 
the  knowledge  officially  as  a  mem- 
ber of  the  board  and  in  the  course 
of  business  as  a  director  or  for  the 
purpose  of  being  communicated 
by  him  to  the  board.  Anthony  v. 
Jeffress,  172  N.  C.  378,  90  S.  E. 
Rep.  414. 

95  Wilson  v.  McCullough,  23  Pa. 
St.  440;  Chapman  v.  Erie  Ry.  Co., 


55  N.  Y.  579,  rev'g  1  Supm.  Ct. 
(T.  &  C.)  526;  Commercial  Bank 
v.  Wood,  7  Watts  &  S.  89. 

96  See  1  Greenl.  Ev.  549,  §  493,  2 
Phill.  Ev.  295,  notes  4  and  343, 
Rose.  N.  P.  228,  231,  1  Whart.  Ev. 
626,  §662;  Starkie,  412,  2  Tayl. 
Ev.  1519.  The  initial  authority 
usually  cited  is  Mayor  of  London 
v.  Lynn,  1  H.  Blacks.  214.  The 
American,  and  I  presume  the 
present  English  law,  would  now 
admit  such  books  as  competent 
towards  showing  that  the  corpora- 
tion made  the  demands  of  toll,  but 
would  require  other  evidence  that 
the  strangers  had  submitted  to 
those  demands,  in  order  to  prove 
the  usage.  In  Owings  v.  Speed,  5 
Whart.  420,  it  was  settled  that  the 
books  of  a  corporate  body,  estab- 
lished by  the  legislature  for  a  public 
purpose — such  as  trustees  of  pro- 
prietary lands — are  competent  evi- 
dence of  the  proceedings  of  the 
body  therein  recorded,  and  ought 
to  be  admitted  whenever  those 
acts  are  to  be  proved  (MARSHALL, 
C.  J.);  and  the  same  principle  is 
constantly  applied  not  only  to  the 
statutory  records,  but  also  to  the 
deliberative  minutes  of  private 
corporations,  within  the  limits 
indicated  in  the  text. 


150  ACTIONS   BY   AND   AGAINST    CORPORATIONS 

that  corporate  books  are  not  evidence  against  strangers,  was 
not  originally  a  sound  generalization,  and  is  no  longer  a  safe 
guide  in  practice.  Considered  for  purposes  of  evidence,  the 
records  of  a  corporation  are  chiefly  of  three  classes : 

1.  Statutory  records — or  those  required  by  law  for  the 
purpose  of  preserving  exclusively  written  evidence  of  im- 
portant acts — such  as  subscription  books  for  stock,  registers 
of  shareholders,  annual  reports,  etc.,  and  their  quality  as 
evidence  depends  largely  upon  the  statutes  by  which  they 
are  required. 

2.  Minutes  of  deliberative  proceedings — which  are  prop- 
erly made  at  the  meetings  of  the  corporation  and  of  boards 
and  committees — and  the  quality  of  these  as  evidence  de- 
pends on  common-law  rules  peculiar  to  the  records  of  bodies 
of  corporate  form,  but  modified  often  by  the  statute  govern- 
ing the  corporation. 

3.  Account  books  and  other  books  of  entries  kept  by  the 
officers  or  agents  of  the  corporation,  as  records  of  transac- 
tions in  the  course  of  their  agency,  such  as  would  be  kept  by 
the  agents  of  an  individual  or  partnership  carrying  on  a  like 
business;  and  these  account  books  are  subject  to  the  common- 
law  rules  applicable  generally  to  the  accounts  of  individuals 
and  partnerships. 

55.  Statutory  Records. 

The  mere  fact  that  a  statute  requires  a  record  to  be  made 
does  not  make  the  books  the  only  evidence,97  but  where  the 

97  Inglis  v.  Great  N.  Ry.  Co.,  16  the  subject,   parol  evidence  may 

Eng.  L.  &  Eq.  55;  s.  c.,  1  McQ.  be  heard."     Ratcliff  v.  Teters,  27 

H.  L.  112,  119;  Bank  of  U.  S.  v.  Ohio  St.  66;  Bank  of  United  States 

Dandridge,    12  Wheat.   70.     "In  v.  Dandridge,  12  Wheat.  64.    "The 

addition  to  the  evidence  authorized  original  books,  and  the  evidence 

by  the  statute,  the  original  books  provided  for  by  sections  15  and  18 

would  be  admissible,  and  in  case  of  the  statute,  are  original  evidence, 

of  loss  or  destruction  the  contents  and  evidence  of  a  secondary  nature 

might  be  proven,  and  under  certain  is  not  to  be  resorted  to  where  there 

circumstances,  where  there  is  an  is  in  the  possession  of  a  party  evi- 

omission  to  make  any  record  on  dence  of  a  higher  and  more  satis- 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  151 

record  itself  constitutes  the  act — as  in  the  case  of  a  subscrip- 
tion for  stock  in  the  commissioners'  books,  or  the  making  an 
annual  report,  or  the  adoption  of  a  municipal  by-law — the 
fact  to  be  proved,  when  directly  in  issue,  is  the  existence  of 
the  statutory  record;  and  consequently,  if  the  act  is  com- 
petent to  be  proved,  between  whatever  parties,  production  of 
the  statutory  record  is  a  competent  mode  of  proof.  And 
parol  evidence  cannot  be  received  in  a  collateral  proceeding 
to  contradict  the  records  of  a  public  corporation,  which  are 
required  by  law  to  be  kept  in  writing,  or  to  show  a  mistake 
therein  as  recorded.98 

66.  Minutes  of  Proceedings. 

Whenever  the  action  of  a  deliberative  body — whether  that 
of  the  corporation  at  large,  its  board,  or  a  committee — is 
competent  to  be  proved,  either  in  favor  of  or  against  the 
corporation,  its  officers,  members,  or  strangers,  the  con- 
temporaneous corporate  record  of  their  action  is  com- 
petent," though  not  always  alone  sufficient.  Thus  the  act 

factory   character.     Proof  of  the  to  be  recorded  as  such  on  the  cor- 

papers,  entries,  and  records  of  a  porate  records,  he  fixes  his  own 

private  corporation  in  possession  status   and  is  liable  for  the   con- 

of    that    corporation    cannot    be  quences.       Bartlett    v.    Stephens 

shown  by  an  opinion  or  conclusion  (Minn.),  163  N.  W.  Rep.  288. 
of  a  witness.    The  evidence  must          98  Everts   v.    District   Township 

be    primary,    original    evidence."  of  Rose  Grove,  77  Iowa,  37,  14 

Mandel  v.  Swan  Land,  etc.,  Co.,  Am.  St.  Rep.  264,  41  N.  W.  Rep. 

154  111.  177,  45  Am.  St.  Rep.  124,  478. 

40  N.  E.  Rep.  462.  "  This  is  the  modern  rule  founded 

The  usual  evidence  of  who  are  in  reason,  and  essential  to  public 

stockholders  in  a  corporation  is  the  convenience.    See  cases  cited  under 

stock   record   of   the   corporation.  this  and  following  paragraphs  of 

One  whose  name  appears  on  the  this  chapter,  and  Smith  v.  Natchez 

corporate  records  as  a  stockholder  Steamboat  Co.,  2  Miss.  (1  How.) 

is  prima  facie  subject  to  the  liabili-  492,  Rose.  N.  P.  228,  231;  Bank 

ties  of  a  stockholder,  but  this  is  of  U.  S.  v.  Dandridge,  12  Wheat, 

not  conclusive.    If  he  voluntarily  64;  Grant  v.  Henry  Clay  Co.,  80 

assumes  the  relation  of  stockholder,  Pa.  St.  208;  Schell  v.  Second  Nat. 

and  procures  or  permits  his  name  Bank,  14  Minn.  43;  Ray  burn  v. 


152 


ACTIONS  BY  AND   AGAINST   CORPORATIONS 


of  organizing  may  be  proved  in  favor  of  the  corporation  or 
creditors,  and  against  members  *  and  strangers,2  by  the 
books;  and  in  an  action  between  strangers,  one  claiming  a 
professional  degree  may  prove  it  by  the  books  of  the  college 
that  granted  it,3  and  one  claiming  as  assignee  of  a  corpora- 
tion may  prove  the  assignment  by  the  corporate  books.4  So 
where  it  is  competent,  in  an  action  against  a  corporation  for 
negligence,  for  it  to  prove  its  own  precautions  taken  by  the 
appointment  of  a  committee,  etc.,  the  books  are  competent 


Eldod,  43  Ala.  N.  S.  700.  As  pre- 
viously indicated,  numerous  dicta, 
and  perhaps .  some  authority,  to 
the  contrary  will  be  found  in  the 
reports.  See  for  instance,  Jones  v. 
Trustees  of  Florence,  46  Ala.  626. 
The  maxim  that  the  books  of  a 
corporation  are  not  competent  in 
its  favor  against  a  stranger,  to  es- 
tablish a  matter  of  private  right, 
is  undoubtedly  correct  so  far  as  it 
applies  to  the  corporate  accounts. 
That  which  is  peculiar  in  the  com- 
petency of  statutory  records  and 
corporate  minutes,  may  be  illus- 
trated thus.  The  diary  of  an  in- 
dividual is  evidence  against  him 
but  not  in  his  favor.  He  may 
often  prove  an  act  of  his  own  in 
his  own  favor,  but  he  cannot  prove 
it  by  showing  an  entry  of  the  fact 
in  his  own  books.  But  corporate 
minutes  of  deliberative  proceedings 
are  competent,  not  only  against 
the  corporation,  but  against  any 
person  whatsoever,  if  the  delibera- 
tive act  which  is  the  subject  of  the 
record,  is  competent  against  him. 
The  reason  of  the  rule  is  that  the 
entry  of  the  individual  is  a  mere 
declaration;  the  vote  of  a  corpora- 
tion is  an  act.  Often,  however,  the 


corporate  act  must  be  connected 
with  other  proof  to  complete  its 
competency. 

Records  of  transactions  of  boards 
of  directors  of  a  corporation  may 
be  proved  by  the  production  of  the 
original  records.  Cantwell  v.  Welch, 
187  111.  275,  58  N.  E.  Rep.  414. 

Minutes  written  on  a  sheet  of 
paper  signed  by  the  secretary  and 
initialed  by  the  president  are  ad- 
missible, even  though  not  trans- 
cribed into  a  book.  Chott  v.  Tivoli 
Amusement  Co.,  114  111.  App. 
178. 

1  Ryder  v.  Alton,  etc.,  R.  R.  Co., 
13  111.  523;  Penobscot,  etc.,  R.  R. 
Co.  v.  Dunn,  39  Me.  90;  Highland 
Turnpike  Co.  v.  McKean,  10  Johns. 
156;  Coffin  v.  Coffin,  17  Me.  442. 

2  For  instance,  even  in  an  action 
for  tolls.    Duke  v,  Cahawba  Nav. 
Co.,  10  Ala.  N.  S.  82. 

'Moises  v.  Thornton,  8  T.  R. 
303. 

4Edgerly  v.  Emerson,  23  N.  H. 
566. 

The  stock  book  is  evidence  of 
the  right  to  vote  the  stock  shown 
to  be  in  the  name  of  its  owner. 
Walsh  v.  State  (Ala.),  74  So.  Rep. 
45. 


ACTIONS   BY  AND   AGAINST   CORPORATIONS  153 

for  this  purpose.5  It  is  very  commonly  the  case,  that  the 
act  of  a  private  corporation  is  not  competent  unless  shown 
to  have  been  communicated  to  the  other  party,  and  hi  such 
case  the  books  are  competent  to  show  the  act,  provided  other 
evidence  of  communication  is  given  to  connect.  The  first 
question  therefore  to  be  determined  is,  whether  the  corporate 
act  is  competent  under  the  issue,  and  between  the  particu- 
lar parties;  if  so,  the  minutes  may  be  resorted  to  as  evidence 
of  it.6 

It  is  the  duly  authenticated  record  hi  the  books  of  the 
corporation,  which  is  the  best  evidence,  and  the  rough  notes 
of  the  meetings  are  as  much  secondary  evidence  as  the 
testimony  of  witnesses,  and,  hi  the  absence  of  an  authen- 
ticated record,  any  competent  secondary  evidence  may  be 
admitted  to  show  what  the  act  of  the  board  was.7 

Of  course,  the  books  of  municipal  corporations  are  com- 
petent as  evidence  of  the  election  of  their  officers,  and  of 
other  corporate  proceedings  there  recorded,8  and  are  thus 
competent  between  strangers.9 

57.  Against  whom  Evidence  of  Corporate  Acts  is  Compe- 
tent. 
In  general,  a  resolution  or  other  deliberative  act  of  a 

BWeightman  v.  Corporation  of  corporation  should  be  shown  by 

Washington,  1  Black,  39,  46.  the  minutes  or  other  records  kept, 

6  This  principle  is  expressly  recog-  but  where  no  records  are  kept  oral 
nized  by  the  act  as  to  foreign  cor-  evidence    is    admissible    in    their 
porations.   N.  Y.  Law,  1869,  c.  589.  stead.     Fields  v.  Bullington  (Ga. 

Minutes  of  the  proceedings  of  App.) ,  92  S.  E.  Rep.  653. 
the  board  ef  directors  are  compe-  "But  the  entry  relied  on  must 
tent  evidence  on  the  question  of  be  the  primary  one;  and  the  record 
the  ratification  of  the  acts  of  its  of  an  incidental  and  secondary  pro- 
officers  and  agents.  Teeple  v.  ceeding  is  not  the  best  evidence  of 
Hawkeye  Gold  Dredging  Co.,  137  the  date  and  performance  of  the 
Iowa,  206,  114  N.  W.  Rep.  906.  primary  act  which  should  have 

7  Boggs  v.  Lakeport  Agricultural  preceded    it.      See    Litchfield    v. 
Park  Ass'n,  111  Cal.  354,  43  Pac.  Vernou,   41   N.  Y.   123;  Post   v. 
Rep.  1106.  Logan,  1  N.  Y.  Leg.  Obs.  59. 

Ordinarily  the  official  acts  of  a          »  Demingz;.  Roome,  6  Wend.  651. 


154  ACTIONS   BY   AND   AGAINST   CORPORATIONS 

corporation  may  be  proved  in  its  own  favor,  or  in  favor  of  a 
stranger,  against  any  one  who  takes  issue  upon  it — as  where 
the  existence  of  a  corporation,  depending  on  organization 
under  a  general  law,  or  on  acceptance  of  a  charter,  is  denied, 
or  where  it  is  denied  that  the  body  had  conferred  authority 
on  officers  or  agents — and  therefore  in  such  cases  the  minutes 
are  competent.  So  such  an  act  is  competent  as  between  its 
members,  in  respect  to  all  matters  within  the  corporate  tie 
that  unites  them;  and  as  between  them  the  corporate  books 
are  of  the  nature  of  public  books.10  Such  an  act  is  also,  in 
general,  competent  against  a  member  and  in  favor  of  the 
corporation  or  its  creditors,  as  to  matters  within  the  same 
limits,  as  for  instance  where  a  receiver  or  a  creditor,  after 
judgment  against  the  corporation,  sues  a  member  or  officer 
upon  his  subscription  or  individual  liability.  The  mere  fact 
that  a  person  is  a  director  or  stockholder  of  a  corporation 
does  not  make  him  chargeable  with  actual  knowledge  of  its 
business  transactions  or  of  entries  made  in  its  books.11  The 
business  transactions  of  a  corporation  with  its  members  and 
trustees  or  directors  are  on  the  same  footing  as  those  with 
strangers,  and  business  entries  in  its  books  of  account  are  no 
more  evidence  against  them  than  against  strangers.12  And 

10 1  Greenl.  Ev.  548,  §  493.  By-  are  admissible  in  evidence  to  show 
laws  are  evidence  against  an  agent  that  a  contract  had  not  been  exe- 
or  servant  who  had  opportunity  to  cuted  in  the  manner  prescribed  by 
know  and  a  duty  to  obey  them,  the  by-laws.  Northwestern  Pack- 
See  Ang.  &  A.  on  Corp.  347,  §  324.  ing  Co.  v.  Whitney,  5  Gal.  App.  105, 
"The  stock  exchange  is  a  private  89  Pac.  Rep.  981. 
corporation,  and  the  weight  of  au-  "  Rudd  v.  Robinson,  126  N.  Y. 
thority  and  the  better  rule  is,  that  113,  26  N.  E.  Rep.  1046. 
the  entries  in  its  books,  as  hide-  Mandamus  will  not  lie  at  the 
pendent  evidence  against  third  instance  of  stockholder  to  enforce 
persons,  must  stand  upon  the  same  the  right  to  inspect  corporation 
footing  as  entries  made  in  the  books  books,  where  he  shows  no  evidence 
of  companies,  partnerships,  and  of  any  demand  and  refusal  of  such 
individuals."  Terry  v.  Birmingham  inspection.  Rowe  v.  Border  City 
Nat.  Bank,  93  Ala.  599,  30  Am.  St.  Garnetting  Co.  (R.  I.),  101  Atl. 
Rep.  87,  9  So.  Rep.  299.  Rep.  223. 

The  by-laws  of  the  corporation  "Id.     Compare  Blake  v.  Gris- 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


155 


books  of  a  private  corporation  are  not  admissible  as  original 
evidence  against  third  persons  of  facts  therein  stated,  when 
the  person  who  made  the  entries  in  such  books  is  alive,  and 
may  be,  but  is  not  called  upon  to  testify  concerning  the  facts 
detailed  therein.13 

68.  The  Minutes  not  Exclusively  the  Best  Evidence. 

The  records  of  the  corporate  proceedings  are  not  generally 
called  for  or  produced  on  the  trial.14  The  principle  now  com- 
monly received  hi  those  jurisdictions  where  the  law  of 
corporations  is  most  developed  is  that  where  then-  proceed- 
ings are  collaterally  or  incidentally  in  issue,  parol  evidence  is 
equally  primary;  but  on  the  contrary,  the  record  or  a  proper 
copy  should  be  deemed  the  best  evidence,  to  be  produced  or 
accounted  for  before  parol  evidence  can  be  adduced,  when- 
ever the  action  or  defense  is  founded  directly  on  the  act  or 
proceeding  in  question,15  or  when  a  written  act  or  resolution 


wold,  103  N.  Y.  429,  9  N.  E.  Rep. 
434,  see  §  66. 

A  corporation  is  chargeable  with 
the  knowledge  and  conduct  of  its 
officers  intrusted  with  the  transac- 
tion of  its  business,  as  well  as  with 
notice  of  the  entries  on  its  books 
of  account.  Donnelly  v.  Levers  & 
Sargent  Co.  (Mass.),  115  N.  E. 
Rep.  252. 

13  Terry  v.  Birmingham  Nat. 
Bank,  93  Ala.  599,  30  Am.  St.  Rep. 
87,  9  So.  Rep.  299. 

"See  Partridge  v.  Badger,  25 
Barb.  146.  Chief  Justice  REDFIELD 
says:  "In  practice  it  is  not  one 
time  in  ten  where  the  record  books 
of  a  corporation  are  ever  referred 
to  in  court,  unless  to  fix  a  date  or 
the  precise  form  of  a  vote  upon 
which  a  power  is  made  to  depend." 
1  Redf.  on  Ry.  228  (3). 

The  minutes  of   a  corporation 


are  insufficient  to  establish  a 
corporate  agreement  where  they 
merely  show  that  a  motion  relat- 
ing to  the  agreement  in  question 
was  made  and  seconded,  but  do 
not  show  that  it  was  voted  upon  or 
adopted.  Asbury  v.  Mauney  (N. 
C.),  92  S.  E.  Rep.  267. 

15  As  in  case  of  a  prosecution  on 
a  municipal  ordinance,  see  1  Dill. 
M.  C.  443,  §  355;  compare  Wool- 
sey  v.  Village  of  Rondout,  4  Abb. 
Ct.  App.  Dec.  639,  642,  IV;  or  a 
suit  for  relief  against  fraudulent 
representations  as  to  the  organiza- 
tion or  condition  of  the  corporation. 
Warner  v.  Daniels,  1  Woodb.  &  M. 
106;  or  an  action  on  a  contract 
made  by  a  resolution  embodying 
terms  of  proposal,  followed  by  as- 
sent on  the  part  of  the  contracting 
party.  Paragraph  30,  above. 

Under  c.  53,  §  52  of  the  Code 


156 


ACTIONS  BY  AND   AGAINST   CORPORATIONS 


is  pleaded  and  in  issue,  or  when  the  contents  of  the  record 
were  communicated  and  the  terms  of  the  communication  is 
the  material  fact.  .  In  other  words,  the  primariness  of  the 
minutes  does  not  depend  on  their  being  corporate  records, 
but  on  general  principles  applicable  to  other  classes  of 
papers.16  In  a  suit  against  a  corporation  the  minutes  of  the 
board  of  directors  are  conclusive  against  it,  and  testimony  is 
inadmissible  on  its  behalf  to  prove  that  certain  individual 
directors  under  the  corporation  were  not  to  be  bound  by  the 
resolution  as  written.17  Where  no  records  are  kept  or  the 
proceedings  are  not  recorded,  parol  evidence  is  admissible  to 
show  what  was  resolved  upon,  or  the  vote  by  which  it  was 
carried.18 


of  West  Virginia  requiring  corpo- 
rations to  keep  records  of  their  pro- 
ceedings, such  records  are  the  best 
evidence  of  the  facts  therein  re- 
corded, and  oral  evidence  is  inad- 
missible, where  no  explanation  is 
given  for  not  producing  the  records. 
Ramsdell  v.  National  Rivet,  etc., 
Co.,  104  Fed.  Rep.  16. 

18  Conflicting  authorities,  too  nu- 
merous to  be  cited  here,  abound. 
The  incertitude  of  opinion  may 
easily  be  seen  by  comparing  1 
Whart.  Ev.,  §  77,  and  Id.,  §§  661, 
663,  1  Redf.  on  Ry.  228  (2),  and 
Ang.  &  A.  on  C.  66,  §  83,  p.  394, 
§  368;  Field  on  Corp.,  §  224;  Part- 
ridge v.  Badger,  25  Barb.  146,  and 
Clark  v.  Farmers'  Woolen,  etc.  Co., 
15  Wend.  256,  and  cases  cited; 
Lumbard  v.  Aldrich,  8  N.  H.  31, 
and  Edgerly  v.  Emerson,  23  N.  H. 
566,  and  see  36  Id.  138. 

17  McGowan  v.  Lincoln  Park,  etc. 
Co.,  181  Pa.  St.  55,  37  Atl.,  Rep. 
1119.  See  also  State  v.  Main,  69 
Conn.  123,  37  Atl.  Rep.  80. 

If  minutes  of  a  corporate  meet- 


ing were  written  out,  they  may  be 
proved  by  any  witness  who  can 
testify  to  their  correctness,  whether 
or  not  he  was  a  secretary  de  jure. 
If  no  minutes  were  preserved,  then 
the  transactions  may  be  proved 
by  any  one  who  was  present  and 
can  recall  them  either  from  memory 
or  by  the  aid  of  notes  taken  by  him 
at  the  time.  Edward  Davis,  Inc.,  v. 
Adler,  164  N.  Y.  Supp.  65. 

18  Zalesky  v.  Iowa  State  Ins.  Co., 
102  Iowa,  512,  514-515,  70  N.  W. 
Rep.  187,  71  N.  W.  Rep.  433;  Ten 
Eyck  v.  Railroad  Co.  (Mich.),  41 
N.  W.  Rep.  905;  Cram  v.  Bangor 
House  Proprietary  Co.,  12  Me. 
354;  Bank  v.  Dandridge,  12  Wheat. 
69;  Dillon  Mun.  Corp.  (4th  ed.), 
§§300,  301;  Powesheik  County  v. 
Ross,  9  Iowa,  511;  Athearn  v.  Inde- 
pendent District,  33  Iowa,  105. 
See  also  Lawson's  note  to  Wertheim 
v.  Cont.  Ry.  &  Trust  Co.,  15  Fed. 
Rep.  716. 

Where  no  minutes  have  been 
kept  of  the  proceedings  of  a  cor- 
poration parol  evidence  may  be 


ACTIONS   BY   AND   AGAINST   CORPORATIONS 


157 


59.  Authentication  of  Corporate  Books  when  Produced. 

To  introduce  the  corporate  books  in  evidence,  their  char- 
acter as  such  must  be  properly  shown  by  testimony,  unless 
conceded.19  For  this  purpose  it  is  usual  to  call  the  secretary 
or  other  officer  who  made  the  record;  but  this  is  not  essen- 
tial,20 for  without  him  they  may  be  admitted  on  their  produc- 
tion by  a  witness  who  can  testify  of  his  own  knowledge  that 
they  are  the  books  of  the  corporation;  that  they  have  been 
regularly  kept  by  the  proper  officer,  or  by  some  person  in  his 
necessary  absence;  that  they  come  from  the  proper  custody; 
and  that  he  knows  of  his  own  knowledge  that  the  entries 
offered  are  correct  records  of  the  transactions  they  profess  to 
record,21  or,  in  lieu  of  such  knowledge,  other  competent  pre- 
sumptive evidence,  such  as — that  the  entries  are  in  the  hand- 


given  as  to  what  was  transacted. 
Birmingham  R.,  etc.,  Co.  v.  Bir- 
mingham Traction  Co.,  128  Ala. 
110,  29  So.  Rep.  187. 

In  the  absence  of  a  record,  the 
adoption  of  a  resolution  by  the 
board  of  directors  may  be  proved 
by  persons  who  attended  the  meet- 
ing adopting  it.  Hendrie,  etc., 
Mfg.  Co.  v.  Collins,  29  Colo.  102, 
67  Pac.  Rep.  164. 

19  If  produced  by  the  corporation 
on  notice,  proof  of  authenticity  is 
necessary   as  against  a   stranger; 
but  is  not  necessary  as  against  the 
corporation  or  its  members,   nor 
between  it  and  one  who  is  a  party 
to  the  paper  produced  or  claims 
under  it,  or  the  State  proceeding 
to  enforce  rights  under  it.    Com- 
monwealth v.  Woelper,  3  S.  &  R. 
43. 

20  Hathaway   v.    Inhabitants   of 
Addison,  and  other  cases  in  next 
note.    The  contrary  held  where  the 
corporation  offered  their  own  books 


without  producing  or  accounting 
for  the  recording  officer.  Union 
Gold  M.  Co.  v.  Rocky  M.  Nat. 
Bank,  2  Col.  Ter.  565. 

21  Highland  Turnpike  Co.  v. 
McKean,  10  Johns.  154;  St.  Law- 
rence Mut.  Ins.  Co.  v.  Paige,  1 
Hilt.  430;  Hathaway  v.  Inhabi- 
tants of  Addison,  48  Me.  440,  2 
Phil.  Ev.  442,  1  Whart.  Ev.,  §  639, 

I  Greenl.   Ev.,   §483,   and   cases 
cited.     The  minutes  of  the  sub- 
scription   commissioners    may    be 
proved  by  their  secretary.    Ryder 
v.  Alton,  etc,  R.  R.  Co.,  13  111.  523. 
The  books  dedicated  to  the  use  of 
the  corporate  records  are  compe- 
tent, though  the  original  volumes 
were  purchased,  and  are  claimed, 
as  the  individual  property  of  a 
member.    State  v.  Goll,  32  N.  J. 
L.  285,  and  see  Sawyer  v.  Baldwin, 

II  Pick.    492.     Documents   may 
also  be  produced  by  a  corporator 
who  has  custody  of  them.    Stark. 
Ev.  456. 


158  ACTIONS   BY   AND   AGAINST   CORPORATIONS 

writing  of  a  person  proved  to  be  the  proper  recording  officer,22 
or  that  the  book  containing  them  has  been  handed  down  in 
actual  and  continuous  use  in  the  corporation,  as  the  guide 
and  authority  for  its  officers.23  Such  evidence  being  given, 
it  is  presumable  that  the  entries  were  made  at  the  dates  they 
bear;  but  if  grounds  of  suspicion  appear,  the  party  should  be 
provided  with  evidence  on  that  point.24  An  erasure  will  be 
presumed  to  have  been  made  before  the  entry  was  signed.25 
The  degree  of  this  proof  is  a  preliminary  question  for  the 
court.  More  latitude  is  allowable  in  the  proof,  in  proportion 
as  the  books  are  ancient.26  The  signature  of  the  appropriate 
officers  to  the  minutes  of  proceedings  even  of  a  public  cor- 
poration or  municipal  board,  though  required  by  law,  is  not 
in  the  nature  of  an  official  certificate  of  the  matters  stated  in 
the  minutes;  but  rather  an  attestation  of  their  authenticity; 
and  though  they  lack  the  required  signature,  their  authen- 
ticity may  be  proved  by  testimony.27  The  same  principle 
applies  to  the  records  of  a  private  corporation. 

It  is  competent  to  rebut  the  evidence  of  authenticity  by 
any  proper  evidence,  for  instance,  by  producing  and  prov- 
ing another  set  of  records,  incompatible  with  those  first 
put  in.28 

60.  Rough  Minutes. 

Rough  notes  taken  by  the  recording  officer,  at  the  meet- 
ing, for  the  purpose  of  being  afterward  extended  in  the 
books,  are,  until  so  extended,  competent  in  place  of  a  formal 

22  If  the  minutes  were  made  by  25  Rose.  N.  P.  141,  citing  15  Ir. 

a  former  clerk,  since  deceased,  his  Ch.  R.  405.    But  see  1  Phil.  Ev. 

handwriting,  and  the  fact  that  he  606,  2  Id.  458,  21  N.  Y.  541. 

was  the  proper  recording  officer,  M  Union  Canal  Co.  v.  Lloyd,  4 

must  both  be  proved  by  extrinsic  Watts  &  S.  398,  and  see  1  Tayl. 

evidence.    Highland  Turnpike  Co.  Ev.  105. 

v.  McLean,  10  Johns.  153;  Owings  "People  v.   Eureka  Lake  Co., 

».  Speed,  5  Wheat.  427.  48  Cal.   143;  West  Springfield  v. 

»  Union  Bank  v.  Ridgely,  1  Har.  Root,  18  Pick.  318. 

&  G.  410.  »  Goodwin  v.  U.  S.  Annuity,  etc., 

24  Haynes  v.  Brown,  36  N.  H.  567.  Co.,  24  Conn.  600. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  159 

record; 29  and,  if  lost  without  being  entered,  parol  evidence 
of  the  transactions  of  the  meeting  is  competent.30  But, 
after  the  formal  record  has  been  made  out  from  them  by 
the  proper  officer,  within  a  reasonable  time,  that  becomes  the 
original  record,  and  the  rough  minutes  are  no  longer  the  best 
evidence.31 

61.  Competency  of  Copies. 

Where  the  entries  are  of  a  public  character,  so  that  the 
public  generally  have  a  right  to  resort  to  them,  the  court 
will  not  require  their  production,  but  allows,  in  lieu,  the 
production  of  a  copy  by  a  witness  who  can  swear  to  its 
accuracy,32  or  a  copy  certified  by  some  officer  who  is  made 
by  law  a  certifying  officer  for  the  purpose.33  Entries  not  of 
such  a  public  nature  cannot  be  proved  by  copy  at  common 
law,34  unless  the  copy  is  one  that  has  been  issued  or  received 
as  such  by  the  corporation  or  other  party  against  whom  it 
is  adduced.35  By  a  recent  statute  in  New  York,  the  books 
of  a  foreign  corporation  are  admissible  in  evidence  to  prove 
transactions  of  such  corporation  in  any  court  of  the  State. 

29  Waters  v.  Gilbert,  2  Gush.  27.  34  A  copy  of  a  vote  of  a  corpora- 

30  Wallace  v.  First  Parish,   109  tion  is  not  competent  evidence  of 
Mass.    264;    Protho    v.    Minden  such  vote,  unless  either  sworn  to 
Seminary,  2  La.  Ann.  939.  or  certified  by  some  person  who  is 

31  Board  of  Education  v.  Moore,  made  by  law  a  certifying  officer  for 
17  Minn.  422.  such    purpose.      Hallowell,    etc., 

32  A  seal  will  not  authenticate  it.  Bank  v.   Hamlin,    14  Mass.   178, 
Stark,  Ev.  457,  n.;  Whitehouse  v.  Rose.  N.  P.  141.    Where  the  law 
Bickford,  29  N.  H.  (9  Fost.)  471.  requires  a  public  record  to  be  kept 

A  copy  of  a  carrier's  printed  by  officers,  which  all  persons  in- 
schedule  of  freight  rates  on  file  terested  are  entitled  to  a  copy  of, 
with  the  Interstate  Commerce  some  courts,  for  reasons  of  con- 
Commission  is  the  best  evidence  of  venience,  have  received  a  copy 
such  rates.  Oral  evidence  in  regard  authenticated  by  the  officers.  East- 
to  them  will  not  be  received.  Sloop  port  v.  East  Machias,  35  Me.  404. 
v.  Wabash  R.  Co.,  117  Mo.  App.  "Atlantic  Mut.  Fire  Ins.  Co.  v. 
204,  84  S.  W.  Rep.  111.  Sanders,  36  N.  H.  252,  1  Redf.  on 

33  Commonwealth    v.    Ghase,    6  Ry.  467;  State  Bank  v.  Ensminger, 
Gush.  (Mass.)  248.  7  Blackf.  (Ind.)  105. 


160  ACTIONS   BY   AND   AGAINST   CORPORATIONS 

And  copies  of  such  books  may  be  proved  by  deposition  on 
commission,  or  by  any  other  competent  evidence,  on  giving 
ten  days'  previous  notice,  except  in  favor  of  the  corporation 
where  it  is  a  party.36 

62.  Reports. 

An  official  statement  or  report  received  by  the  corpora- 
tion or  board  from  one  acting  as  officer,  and  accepted  and 
adopted  by  them,  is  competent  evidence  against  the  corpo- 
ration, and  those  bound  by  its  acts,  without  futher  proof 
of  the  appointment  of  the  officer; 37  but  a  report  to  a  cor- 
poration or  board  is  not  made  admissible  in  evidence  against 
it  by  the  mere  fact  that  it  was  received  and  "accepted" 
by  it,38  except  for  the  purpose  of  charging  it  with  notice  of 
the  contents. 

63.  Foundation  for  Secondary  Evidence. 

Where  proof  of  loss  is  required,  as  it  may  be  when  the 
corporation  offers  secondary  evidence  in  its  own  behalf, 
testimony  of  the  proper  custodian,  that  he  has  the  control 
of  all  the  books  and  papers  of  the  company,  and  has  made 
most  diligent  search  for  the  book,  and  inquiry  of  every  person 
concerned  with  the  matter,  but  could  get  no  clue  to  it,  is 
enough,39  and  if  the  proper  custodians  testify  to  their  proper 
search  for  a  book  which  they  had  allowed  to  be  removed, 
and  the  inability  of  themselves  and  of  the  person  to  whom 
it  was  lent  to  find  it,  and  their  ignorance  as  to  where  it  is, 

38  L.  1869,  c.  589,  amending  §  1  111.  81.    As  to  records  out  of  the 

of  L.  1863,  c.  206;  repealed  by  L.  jurisdiction,  proved  by  deposition, 

1909,    c.   65,   and   superseded   by  see  4  Allen,  122,  and  King  v.  Enter- 

N.  Y.  Code  Civ.  Pro.,  §§  929-931.  prise  Ins.  Co.,  45  Ind.  43,  59. 
The  Illinois  act  admitting  copies,          37  Partridge  v.  Badger,  25  Barb, 

has  been  held  merely  to  make  cer-  172. 

tified  copies  admissible  in  lieu  of          38 1  Dill.  M.  C.  357,  §  242;  see 

originals,  and  not  to  make  such  also  paragraph  36. 
books  and  records  evidence  as  were          39  Graff  v.  Pittsburgh,  etc.,  R..R. 

not  so  previously.    Pittsfield,  etc.,  Co.,  31  Pa.  St.  494;  Board  of  Edu- 

Plank  Road  Co.  v.  Harrison,   16  cation  v.  Moore,  17  Minn.  412. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  161 

this  is  sufficient  in  the  absence  of  suspicious  circumstances, 
without  calling  such  third  person.40 

64.  Notice  to  Produce. 

A  person  not  entitled  to  the  custody  of  the  books  or  papers 
is  not  bound,  as  against  the  corporation,  to  call  its  officer  as 
a  witness  before  offering  secondary  proof  against  it,  but  may 
give  its  attorney  notice  to  produce,41  and,  in  default  of  com- 
pliance, may  prove  the  contents  by  secondary  evidence.  A 
written  authority  of  an  officer  or  agent,  if  delivered  to  him 
by  the  corporation  as  his  evidence  of  appointment,  should 
be  called  for  by  subpoena  duces  tecum  to  him;  but  if  simply 
entered  in  their  records  as  the  act  of  the  corporation,  al- 
though kept  in  his  custody,  should  be  called  for  by  notice 
to  produce.42  The  failure  of  the  corporation  to  produce  its 
books  upon  due  notice  entitles  the  adverse  party  to  favor- 
able presumptions  in  aid  of  his  secondary  evidence; 43  but 
it  does  not  preclude  them  from  producing  the  books  on 
their  own  behalf  for  another  matter.44 

65.  Parol  Evidence  to  Vary  Corporate  Minutes. 

Where  the  record  of  meetings  of  a  municipal  corporation  is 
kept  pursuant  to  law,  parol  evidence,  although  admissible 
to  apply  the  language  to  its  subject-matter,  is  not  competent 
to  enlarge  or  contradict  the  terms  or  meaning  of  proceedings 
which  are  recorded; 45  and  in  general,  where  the  law,  for 
the  purpose  of  preserving  authentic  evidence,  prescribes 
the  keeping  of  official  minutes  of  public  proceedings  of  a 
corporate  nature,  parol  evidence  is  not  competent  to  con- 

40  Partridge  v.  Badger,  25  Barb.          «  SHAW,  Ch.  J.,  Thayer  v.  Mid- 
173,  s.  P.,  Indianpolis,  etc.,  R.  R.  dlesex  (above);  Wylde  v.  Northern 
Co.  v.  Jewett,  16  Ind.  273.  Rw.  Co.,  53  N.  Y.  156.    Compare 

41  Thayer  v.  Middlesex  Mutual  18  Wall.  544. 

Ins.  Co.,  10  Pick.  326,  1  Redf.  Rw.  44  Tyng  v.  U.  S.  Submarine,  etc., 

228  (2).  Co.,  1  Hun,  161. 

42  Westcott  v.  Atlantic  Silk  Co.,  45  See  1  Dill.  M.  C.  349,  and  cases 
3  Mete.  291.  cited  pro  and  con. 


162  ACTIONS   BY   AND   AGAINST   CORPORATIONS 

tradict  the  minutes.46  In  respect  to  minutes  of  private  cor- 
porations, the  better  opinion  is  that  parol  evidence  is  compe- 
tent, except  where  the  minutes  are  held  the  best  evidence, 
and  even  then,  unless  the  issue  is  between  the  corporation 
and  another  party  to  the  act  which  they  are  adduced  to 
prove.47  Moreover,  the  restriction  on  such  parol  evidence 
applies  only  to  the  records  of  the  proceedings  of  the  cor- 
porate body  itself;  but  not  to  those  of  the  directors  of  private 
corporations.  They  are  but  agents  of  the  body,  and  their 
minutes  are  not  (unless  by  contract  or  estoppel)  conclusive 
on  the  corporation,  but  may  be  contradicted  by  parol.48 
And  a  witness,  an  officer  of  the  corporation,  may  be  asked 
if  he  knew  of  any  reason  why  the  assent  given  informally 
by  the  directors  was  not  recorded.  The  mistake  or  neglect 
of  the  secretary,  or  the  direction  of  the  board  to  delay  the 
entry,  may  be  proved  against  the  corporation.49  But  even 
where  parol  evidence  is  admissible,  testimony  as  to  the 
sense  in  which  the  recorded  vote  was  understood  by  an 
officer  or  member  is  not  competent,50  nor  are  his  declara- 
tions as  to  its  meaning  competent,  except  against  him- 
self.51 

46  See  People  v.  Zeyst,  23  N.  Y.          «  Goodwin  v.  U.  S.  Annuity,  etc., 
140;  and  as  to  supplying  omissions      Co.,  24  Conn.  601. 

by  parol,  compare  Andrews  v.  In-  A  witness  who  knows  that  cer- 

habitants   of   Boston,    110   Mass.  tain  bonds  were  never  delivered 

214;  as  to  amending,  compare  1  to  a  corporation  may  testify  to 

Dill.  M.  C.  346,  §§  233,  234.  Parol  that  fact;  and  it  does  not  matter  if 

evidence  is  admissible,  in  an  action  the  minutes  of  the  corporation  are 

to  collect  a  subscription  for  cor-  in  writing  and  show  that  the  bonds 

porate   stock,    to   show   that   the  were  delivered.     Fouche  v.   Mer- 

written  subscription  was  by  express  chants'  National  Bk.,  110  Ga.  827, 

agreement  not  to  be  delivered  to  36  S.  E.  Rep.  256. 

the  corporation  or  to  be  binding  49  Bay  View  Assni  v.  Williams,  50 

on  the  subscriber  until  a  certain  Cal.  353. 

number  of  other  persons  had  each  M  Ehle  v.  Chittenango  Bank,  24 

subscribed    for    a    like    amount.  N.  Y.  548,  1  Greenl.  Ev.  323,  n. 

Gilman  v.  Gross,  97  Wis.  224,  72  "  Bartlett  v.  Kinsley,  15  Conn. 

N.  W.  Rep.  885.  334;  Tyng  v.  U.  S.  Submarine  Co., 

47  See  p.  52.  1  Hun,  161. 


ACTIONS   BY   AND   AGAINST   CORPORATIONS  163 

66.  Accounts  and  Business  Entries. 

The  third  class  of  corporate  books,  constituting  the  ac- 
counts of  the  transactions  of  a  private  corporation  had 
through  agents  and  officers,  are  competent  between  mem- 
bers, and  between  the  corporation  and  members  on  any 
question  which  concerns  them  in  their  interest  as  such,52 
and  between  third  persons  at  issue  in  respect  to  the  condi- 
tion and  solvency  of  the  corporation.53  Beyond  this,  their 
corporate  character  gives  them  no  competency  in  favor  of 
the  corporation,  nor  between  third  persons,54  but  their  ad- 
mission for  these  purposes  must  be  sought  on  grounds 
common  to  the  accounts  of  individuals  and  firms — for  in- 
stance, by  producing  the  person  who  made  the  entry,  and 
reading  it  as  a  memorandum  in  aid  of  his  testimony  to  its 
correctness,55  or  by  showing  that  the  entry  was  made  when 
the  party,  being  a  member,  was  present  and  presumably  as- 
senting to  the  entry; 56  or  by  showing  that  the  memorandum 
was  made  by  the  common  agent  of  the  parties,  at  then- 
request,57  or  that  it  was  made  in  the  course  of  duty  by  a 
person  since  deceased,  who  had  means  of  knowledge,  and 
no  interest  to  falsify.58  In  case  of  a  public  corporation,  ad- 
mission of  accounts  may  be  sought  on  grounds  common  to 

"Hubbell  v.  Meigs,  50  N.  Y.  competent  against  those  claiming 

430;  Merchants'  Bank  v.  Rawls,  21  under  the  member.    Union  Canal 

Geo.  334.  Co.  y.  Lloyd,  4  Watts  &  S/398. 

53  See  paragraph  58,  n.  3  (above).  And  even  where  the  very  question 

84  Except    when    they    are    the  is  whether  he  was  a  member,  prima 

books    of    a    foreign    corporation  facie   evidence   on   that  point   is 

within  the  statute.     N.  Y.  Law,  enough  to  let  in  the  entry  made  in 

1869,  c.  589;  N.  Y.  Code  Civ.  Pro.,  his  presence  and  assent.    Graff  v. 

§§  929-931  and  3343,  or  perhaps  Pittsburg,  etc.,  R.  R.  Co.,  31  Pa. 

when  the  books  of  a  bank  the  prop-  St.  495. 

erty   of  the   State.     Crawford  v.  57  New  England  Co.  v.  Vandyke, 

Bank,  etc.,  8  Ala.  N.  S.  79.    See  1  Stockton  %(N.  J.),  498;  compare 

§  58.  Black  v.  Shi-eve,  13  N.  J.  Ch.  455. 

55  Farmers'    &    Mech.    Bank   v.  *  Ocean  Bank  v.  Carll,  55  N.  Y. 

Boralf,    1   Rawle,    152;   Chenango  440, 9  Hun,  239;  Wheeler  v.  Walker, 

Bridge  Co.  v.  Lewis,  63  Barb.  111.  45  N.  H.  355;  Chenango  Br.  Co., 

88  And  such  an  entry  is  equally  etc.,  v.  Lewis,  63  Barb.  111. 


164  ACTIONS   BY   AND   AGAINST    CORPORATIONS 

the  accounts  of  public  officers; 59  and  as  against  the  corpora- 
tion, entries  in  the  corporate  books,  made  by  an  officer  in 
ftie  discharge  of  his  duty,  are  competent  on  proving  the 
books  by  the  secretary  or  by  other  regular  proof.  It  is  not 
necessary  to  produce  the  officer  who  made  the  entries.60 

»  See  Cabot  p.  Waldron,  46  Vt.         M  N.  Am.  Building  Asso.  v.  Sut- 
11.  ton,  35  Pa.  St.  466. 


CHAPTER  IV 


ACTIONS   BY   AND    AGAINST   EXECUTORS   AND 
ADMINISTRATORS 


1.  Nature  of  official  character  and 

title. 

2.  Necessity  of  proof  of  title  under 

pleadings. 

3.  Appropriate  mode  of  proof. 

4.  Effect  of  letters  as  evidence. 

5.  Impeaching  the  letters. 

6.  Best  and  secondary  evidence  of 

authority. 

7.  Representatives'     declarations 

and    admissions    competent 
against  the  estate. 

8.  The    decedent's    declarations 

and  admissions. 

9.  Judgments. 

10.  Testimony  of  the  representa- 

tive. 

1 1 .  Testimony  of  interested  persons 

against  the  estate. 

12.  The  New  York  rule. 

13.  What  parties  are  excluded. 


14.  What  interested  witnesses  are 

excluded. 

15.  Assignor  or  source  of  title  ex- 

cluded. 

16.  What  persons  are  protected. 

17.  Insanity. 

18.  Objecting  to  the  testimony. 

19.  Preliminary  question  of  compe- 

tency. 

20.  Moving  to  strike  out  incompe- 

tent part  of  testimony. 

21.  Proof  of  an  interview. 

22.  What  is  a  personal  transaction 

or  communication. 

23.  Indirect  evidence. 

24.  Effect  of  objecting  party  testi- 

fying in  his  own  behalf. 

25.  Form  of  offer  of  testimony  in 

rebuttal. 

26.  The     United     States     courts 

rule. 


1.  Nature  of  Official  Character  and  Title. 

By  the  modern  law,  executors  and  administrators  are 
no  longer  the  presumptive  and  contingently  ultimate  owners 
of  the  assets,  but  are  constituted  trustees  of  all  the  prop- 
erty in  their  hands; 61  and  an  executor,  though  designated 


81  Dox  v.  Backenstose,  12  Wend. 
542;  Babcock  v.  Booth,  2  Hill,  181. 

The  administrator  of  an  estate 
stands  in  the  relation  of  a  trustee 
to  all  those  interested  in  the  estate. 
Pierce  v.  Holzer,  65  Mich.  263,  32 


N.  W.  Rep.  431;  Huddleston  v. 
Henderson,  181  111.  App.  176. 

An  administrator  is  merely  an 
agent  or  trustee,  acting  immedi- 
ately under  the  direction  of  the  law 
regulating  his  conduct  and  defining 
165 


166 


ACTIONS   BY   AND   AGAINST 


by  the  will,  derives  his  power,  as  truly  as  an  administrator, 
from  letters  granted  by  the  probate  court.62  In  respect  to 
liability  to  action,  he  stands  in  the  place  of  the  deceased, 
and  a  creditor  is  now  entitled  to  judgment  without  alleging 
or  proving  that  there  are  any  assets;  for  the  judgment  only 
liquidates  the  debt.63  On  the  other  hand,  the  creditor  can- 
not recover  against  an  executor  who  has  not  taken  out  pro- 


his  authority.  Collamore  v.  Wilder, 
19  Kan.  67. 

The  administrator  is  a  statutory 
officer  having  authority  to  sue 
for  the  benefit  of  the  estate  which 
he  represents;  but  there  is  no  au- 
thority for  him  to  sue  for  the  use 
of  a  stranger.  Thrift  v.  Baker,  144 
Ga.  508,  87  S.  E.  Rep.  676. 

An  executor  cannot  maintain  a 
bill  for  the  construction  of  a  will 
when  he  has  no  interest  which  may 
be  affected  by  the  construction 
sought.  Tapley  v.  Douglass,  113 
Me.  392,  94  Atl.  Rep.  486. 

82  Hood  v.  Ld.  Harrington,  L.  R. 
6  Eq.  222. 

The  matter  of  recognizing  the 
nomination  of  an  executor  named 
in  a  will  lies  within  the  sound  dis- 
cretion of  the  court,  but  the  person 
so  named  will  usually  be  granted 
letters  unless  a  rather  strong  show- 
ing is  made  against  the  appoint- 
ment. In  re  Doolittle,  169  Iowa, 
639,  149  N.  W.  Rep.  873. 

Where  there  is  an  uncertainty 
regarding  the  appointment  of  an 
executor,  the  intent  of  the  testator 
must  be  sought  and  slight  expres- 
sions in  his  will  may  suffice  to  de- 
termine such  intent.  In  re  Ro- 
bitscher,  156  N.  Y.  Supp.  265,  92 
Misc.  653. 

When  a  widow  asks  for  adminis- 


tration and  upon  proof  is  found 
to  have  been  the  wife  of  the  intes- 
tate, her  right  to  letters  of  adminis- 
tration is  absolute.  In  re  Judson, 
156  N.  Y.  Supp.  270,  92  Misc.  136. 

The  intention  of  the  testator  as 
to  the  nomination  of  his  executor 
being  clear,  the  court  will  lay  hold 
of  slight  circumstances  to  give  legal 
effect  to  such  intention.  Smith  v. 
Haines,  86  N.  J.  Eq.  224,  98  Atl. 
Rep.  317. 

An  executor  named  in  a  will  may 
renounce  his  rights  thereunder  by 
express  renunciation  or  by  acts 
and  conduct  in  pais.  State  v. 
Holtcamp,  267  Mo.  412,  185  S.  W. 
Rep.  201. 

The  statute  of  limitations  begins 
to  run  against  an  administrator 
from  the  date  of  the  letters  of  ad- 
ministration which  are  to  be  con- 
sidered as  issued  only  as  of  the 
date  of  the  approval  of  his  bond. 
Knight  v.  Grant,  219  Mass.  199, 
106  N.  E.  Rep.  853. 

63  Allen  w.  Bishop,  25  Wend.  414; 
Parker  v.  Gaines,  17  Id.  558;  Cov- 
ington  v.  Barnes,  1  Dill.  Cin.  Ct. 
16,  and  cases  cited. 

A  probate  court  may  order  an 
administrator  as  such  to  bring  an 
action  against  himself  individually 
on  his  own  note  which  was  an  asset 
of  the  decedent's  estate.  Powell  v. 


EXECUTORS   AND    ADMINISTRATORS 


167 


bate,  even  on  proof  of  his  having  assets.64  Letters  must  be 
issued,  and  it  is  for  the  holder  of  letters  to  proceed  against 
those  who  meddle  with  the  estate  without  having  letters. 
The  authority  of  the  executor  or  administrator  to  enable  him 
to  sue  cannot  be  shown  by  letters  granted  by  a  court  of 
another  State.65  Such  letters  are  often  relevant  for  the  pur- 
pose of  justifying  his  acts  without  suit,  done  within  this 
State,66  his  acts  done  elsewhere,67  and  his  suits  and  proceed- 


Jackson,  60  Ind.  App.  597,  111 
N.  E.  Rep.  208. 

Where  an  executor  has  entered 
into  a  contract  without  authority 
and  the  estate  has  received  the 
benefit  of  the  same,  the  creditor 
may  recover  from  the  estate. 
Lund  v.  Riggs,  174  Iowa,  79,  156 
N.  W.  Rep.  161. 

An  executor  may  be  sued  where 
he  resides  or  may  be  found  though 
it  be  in  another  county  than  the 
one  hi  which  letters  were  issued. 
People's  Bank  v.  Wood,  193  111. 
App.  442. 

Executors  or  administrators  may, 
in  good  faith  and  with  proper  pru- 
dence submit  to  arbitration  the 
matters  in  controversy  touching 
the  estate  they  represent.  Murry 
v.  Hawkins,  144  Ga.  613  ,87  S.  E. 
Rep.  1068. 

84  As  to  the  exception  in  equi- 
table actions  of  a  certain  class,  see 
Metcalf  v.  Clark,  41  Barb.  45,  and 
cases  cited;  Haddow  v.  Lundy,  59 
N.  Y.  320. 

If  an  executor  has  grounds  for 
believing  that  conveyances  made 
by  his  testator  were  procured  by 
undue  influence  it  is  his  duty  to 
bring  an  action  in  his  representative 
capacity  to  determine  that  ques- 


tion. Hatch  v.  Hatch,  46  Utah, 
218,  148  Pac.  Rep.  433. 

85  Doolittle  v.  Lewis,  7  Johns.  Ch. 
45,  and  cases  cited;  Noonan  v. 
Bradley,  9  Wall.  394.  Contra, 
Carmichael  v.  Saint,  16  Ark.  28. 

Where  there  are  no  creditors, 
the  heirs  or  legatees  may  collect 
the  estate  and  make  such  distribu- 
tion among  themselves  as  they 
may  agree  to;  but  administration 
becomes  necessary  in  order  to 
enforce  the  payment  of  debts  ow- 
ing to  the  estate.  Brobst  v.  Brobst, 
190  Mich.  63, 155  N.  W.  Rep.  734. 

68  Parsons  v.  Lyman,  20  N.  Y. 
103,  affi'g  28  Barb.  564,  and  rev'g 
4  Bradf.  268. 

The  appointment  of  an  adminis- 
trator by  the  probate  court  is  con- 
clusive of  the  necessity  for  adminis- 
tration. Chambers  v.  Cunningham, 
122  Ark.  590,  184  S.  W.  Rep.  49. 

67  Middlebrook  v.  Merchants' 
Bank,  3  Abb.  Ct.  App.  Dec.  295, 
affi'g  41  Barb.  481,  18  Abb.  Pr. 
109. 

In  determining  questions  arising 
out  of  the  administration  of  de- 
cedents' estates,  courts  would  not 
be  justified  in  permitting  an  in- 
justice to  be  sustained  upon  mere 
technical  questions  of  practice. 


168 


ACTIONS   BY    AND    AGAINST 


ings  in  the  State  where  the  letters  issued; 68  and  when  thus 
relevant,  they  are  competent  if  authenticated  agreeably 
to  the  act  of  Congress,69  or  to  the  law  of  the  forum.70 

Executors  and  administrators  are  not  public  officers,  and 
the  rule  of  protection  to  those  dealing  with  them,  is  more  re- 
stricted than  when  applied  to  public  officers.71  The  exec- 
utor or  administrator  is  thus  the  official  and  sole  trustee 
of  the  estate.  He  is  not,  however,  a  public  officer  within 
the  rules  as  to  evidence.  His  actual  title  must  be  shown; 
and,  although  in  the  absence  of  evidence  to  the  contrary, 
he  is  presumed  to  have  acted  in  good  faith,72  the  presumption 
of  regularity  accorded  to  official  acts  does  not  aid  his  pro- 
ceedings.73 The  law  distinguishes  between  his  interest  and 
his  acts,  as  representative  of  the  estate,  and  those  in  his 
individual  capacity  or  other  official  capacity;  and  acts  done 
in  one  capacity  are  not  necessarily  conclusive  against  him 
in  the  other.74 


Hancock  v.  Hancock,  111  N.  E. 
Rep.  (Ind.  App.)  336. 

«8  Clark  v.  Blackington,  110 
Mass.  369, 374. 

89  U.  S.  R.  S.,  §905;  Spencer  v. 
Landon,  21  111.  192;  Graham  v. 
Whitely,  26  N.  J.  L.  260. 

™  N.  Y.  Code  Civ.  Pro.,  §  952. 

71  Roderigas  v.  East  River  Sav- 
ings Inst.,  76  N.  Y.  316,  32  Am. 
Rep.  309. 

72  Sherman  ».  Willett,  42  N.  Y.  146. 
Administrators    are    liable    for 

debts  due  the  succession  which  are 
no  longer  collectible  but  which  they 
might  have  collected  by  proper 
diligence,  and  their  sureties  are 
also  liable  in  a  proper  case  for  such 
neglect.  Reilly  v.  American  Bond- 
ing Co.,  138  La.  315, 70  So.  Rep.  237. 

73  Bank  of  Troy  v.  Topping,  13 
Wend.  563;  Hathaway  v.  Clark,  5 
Pick.  490. 


Where  an  administrator  brings 
an  action  to  foreclose  a  mortgage 
claimed  to  have  been  owned  and 
held  by  his  intestate  at  his  de- 
cease, the  burden  is  upon  him  of 
proving  .  an  existing  mortgage  in- 
debtedness. Shannon  v.-  Mereness, 
90  Conn.  28,  96  Atl.  Rep.  173. 

Where  the  complaint  sets  forth 
a  cause  of  action  against  an  exec- 
utor or  administrator  personally, 
and  also  in  his  representative  ca- 
pacity, a  judgment  for  the  plain- 
tiff must  distinctly  show  whether 
it  is  awarded  against  the  defendant 
personally  or  in  his  representative 
capacity.  An  adjudication  that 
the  plaintiff  recover  of  the  defend- 
ant a  stated  sum"  could  not  be  en- 
forced. Legget  v.  Pelletreau,  213 
N.  Y.  237, 107  N.  E.  Rep.  509. 

i4  So  held  of  ratification  of  a 
contract.  Caughey  v.  Smith,  47 


EXECUTORS   AND   ADMINISTRATORS 


169 


2.  Necessity  of  Proof  of  Title,  Under  Pleadings. 
If  the  allegations  of  the  complaint  do  not  show  explicitly 


N.  Y.  244,  50  Barb.  351.  So  of  a 
judgment,  see  Rathbone  v.  Hooney, 
58  N.  Y.  463.  Contra,  of  notice, 
Burr  v.  Bigler,  16  Abb.  Pr.  177.  So 
of  an  appearance  and  accounting. 
Larrour  v.  Larrour,  2  Redf.  69.  So 
of  a  receipt.  Wilcox  v.  Smith,  26 
Barb.  316,  350.  The  rule  is  usu- 
ally different  where  his  individual 
interest  is  represented  by  him  in 
his  official  character.  McGovern 
v.  N.  Y.  Central,  etc.,  R.  R.  Co., 
67  N.  Y.  417;  but  then  it  may  be 
necessary  that  his  cestuis  que  trust- 
ent  be  parties. 

An  action  at  law  upon  a  con- 
tract made  by  the  deceased  must 
be  brought  hi  the  name  of  his 
executor  or  administrator  as  such, 
but  an  action  brought  upon  a  con- 
tract made  by  the  executor  or 
administrator  must  be  brought  by 
him  individually.  Ehrman  v.  Bas- 
sett,  159  N.  Y.  App.  Div.  752,  144 
N.  Y.  Supp.  976. 

Where  the  administrator  is  also 
an  heir  it  is  not  a  misjoinder  of 
parties  plaintiff  if  he  sues  both  in 
his  individual  and  representative 
capacity.  Rogers  v.  Schlotter- 
back,  167  Cal.  35,  138  Pac.  Rep. 
728. 

The  testator,  and  not  the  exec- 
utor, is  liable  for  a  libel  contained 
in  the  will  which  is  published  by 
the  probate.  Harris  v.  Nashville 
Trust  Co.,  128  Tenn.  573, 162  S.  W. 
Rep.  584,  49  L.  R.  A.  N.  S.  897, 
Ann.  Cas.  1914  C.  885. 

Where  in  the  absence  of  a  statute 


providing  otherwise,  an  executor 
or  administrator  sells  personal 
property  of  the  State  to  himself  in 
his  individual  capacity,  while  he 
does  a  thing  which  he  has  no  right 
to  do,  he  nevertheless  has  the 
capacity  so  to  do  and  title  to 
the  property  passes.  The  trans- 
action is  not  void,  but  only  void- 
able at  the  option  of  those  inter- 
ested. Williams  v.  Cobb,  219  Fed. 
Rep.  663,  134  C.  C.  A.  217. 

Where  at  the  express  request  of 
the  residuary  legatees,  executors 
make  investments  that  are  not  au- 
thorized by  statute,  the  legatees 
are  estopped  from  asserting  any 
personal  liability  against  such  exec- 
utors hi  case  of  loss.  Villard  v. 
Villard,  219  N.  Y.  482,  114  N.  E. 
Rep.  789. 

Where  a  sole  executrix  has  a 
legal  life  estate  hi  the  real  property 
of  the  decedent  and  brings  an 
action  in  her  representative  ca- 
pacity to  recover  for  an  overpay- 
ment of  taxes  thereon,  and  fails, 
the  costs  should  be  awarded  against 
her  personally.  Van  Pelt  v.  New 
York,  155  N.  Y.  Supp.  9,  91  Misc. 
550. 

If  an  executor  disregards  the 
provisions  of  the  will  or  a  rule 
of  law  relating  to  investments,  he 
takes  the  risk  of  any  loss  that  may 
result,  without  the  right  to  any 
profit  that  he  may  make  by  reason 
of  such  investment."  Villard  v. 
Villard,  219  N.  Y.  482,  114  N.  E. 
Rep.  789. 


170  ACTIONS   BY   AND   AGAINST 

whether  the  party  sues  or  is  sued  in  the  representative  or  the 
individual  character,  resort  will  be  had  to  the  designation 
in  the  title  of  the  pleading.  If  it  is  there  indicated  that  he 
sues,  or  is  sued,  "as"  representative — for  example,  if  he  is 
named  "A.  B.  as  executor  of  C.  D.,"  this  is  enough  to  char- 
acterize the  action.75  But  if  he  is  named  with  a  mere  ad- 
dition— for  example,  A.  B.,  executor,  etc.,  of  C.  D.,  this  is 
matter  of  description  only,  and  does  not  alone  show  that  the 
action  is  hi  his  official  capacity,76  but  in  connection  with  al- 
legations in  the  complaint,  may  suffice  to  sustain  the  action 
in  either  capacity.  Under  the  new  procedure,  a  representa- 
tive suing  even  on  a  cause  of  action  accruing  on  a  contract 
made  with  himself,  or  founded  on  his  own  actual  possession, 
should  be  prepared  with  evidence  of  his  appointment,  if 
his  character  as  such  is  alleged  in  his  pleading,  and  not  ad- 
mitted, especially  if  the  recovery  will  be  assets;  but,  in 
courts  where  the  common-law  rule  is  still  followed,  this  proof 
may  not  be  essential  in  such  cases.77 

75  Stilwell  v.  Carpenter,  2  Abb.  each  demand.     Noble  v.  Haff ,  155 

N.  C.  240,  261;  Austin  v.  Munro,  N.  Y.  Supp.  560. 

47  N.  Y.  367;  Scranton  v.  Farmers'  «  Merritt  v.  Seaman,  6  N.  Y.  168; 

Bank,  33  Barb.  527.  Carpenter   v.   Stilwell    (above) ;   3 

In  an  action  for  an  accounting  Wms.   Ex'rs,  6  Am.   ed.   2052-5, 

it   is   proper  for  an   executor   or  Id.  1981,  n.  b.,  1986. 

administrator  to  proceed  both  in  Though  there  be  nothing  in  the 

his  individual  and  representative  title  of  the  complaint  to  give  a 

capacity.    Such  a  joinder  puts  any  representative    character    to    the 

defendant  who  wishes  to  asset  a  plaintiff,  the  averments  and  scope 

claim  at  no  disadvantage  and  the  of  the  complaint  may  be  such  as  to 

complaint  is  not  demurrable  upon  affix  to  him  such   character  and 

the    ground    of    a    misjoinder    of  standing   in   the   litigation.     The 

parties  plaintiff  or  of  causes  of  ac-  word  "as,"  if  omitted  in  the  title 

tion.      Metropolitan    Trust    Co.  between  the  name  of  the  executor 

v.  Stallo  No.  2,  166  App.  Div.  649,  and  the  description  of  his  capacity, 

152  N.  Y.  Supp.  173.  will   not   preclude   him   from   re- 

Where   one   sues   executors   in-  covering  in  his  representative  ca- 

dividually  and  in  their  representa-  pacity.    Beers  v.  Shannon,  73  N. 

tive  capacity,  alleging  demand  up-  Y.  292. 

on  the  testator  and  the  executors,  "  Wms.  Ex'rs,  6  Am.  ed.  2002, 

he  should  also  allege  the  date  of  etc.     The  regulation  of  this  sub- 


EXECUTORS   AND   ADMINISTRATORS 


171 


3.  Appropriate  Mode  of  Proof. 

The  appropriate  proof  of  the  official  character  is  the  pro- 
duction of  the  letters  testamentary,  or  of  administration, 
granted  to  him  by  the  appropriate  tribunal  within  the  State 
where  he  sues; 78  and  the  rule  is  the  same  whether  he  seeks  to 
prove  it  in  his  own  favor,79  or  it  is  to  be  proved  against  him,80 
or  proved  by  a  third  person  as  the  source  of  title.81  Unless 
foundation  is  laid  for  secondary  proof,  parol  evidence  is  in- 
competent.82 But  upon  well-settled  general  principles, 
direct  proof  may  be  dispensed  with  by  estoppel,83  and  where 


ject  varies  much  in  different  juris- 
dictions, according  to  the  extent 
to  which  the  statutes  have  em- 
bodied the  modern  principle,  that 
the  representative  is  a  mere  trustee. 

It  is  not  enough  to  allege  that  the 
representative  "was  duly  appointed 
by  the  surrogate's  court."  The 
surrogate's  court  being  one  of  in- 
ferior and  limited  jurisdiction  the 
facts  upon  which  its  jurisdiction 
is  founded  should  be  set  out  in  the 
pleadings,  e.  g.,  that  the  deceased 
died  intestate,  that  he  was  a  resi- 
dent at  the  time  of  his  death  in  a 
place  within  the  jurisdiction  of  the 
court,  or  that  he  had  property  in 
such  place.  Otto  v.  Regina  Music- 
Box  Co.,  87  Fed.  Rep.  510. 

78  Noonan  v.  Bradley,  9  Wall.  394. 

Letters  of  administration  are 
evidence  that  the  administrator  has 
authority  incident  to  his  office; 
and  they  are  conclusive  evidence 
of  the  right  of  the  administrator 
to  maintain  an  action  affecting  the 
estate.  Rogers  v.  Tompkins  (Tex. 
Civ.  App.),  87  S.  W.  Rep.  379. 

Under  Georgia  Civil  Code, 
§§  4247,  4250,  a  transcript  of  let- 
ters of  administration  which  is 


made  by  an  ordinary  who  is  also 
the  clerk  of  his  own  court,  must 
show  on  its  face  that  it  was  signed 
by  the  ordinary  himself  acting  as 
clerk,  in  order  to  be  admissible  in 
evidence.  Lay  v.  Sheppard,  112 
Ga..lll,  37  S.  E.  Rep.  132. 

79  Belden  ».  Meeker,  47  N.  Y.  307, 
affi'g  2  Lans.  470,  and  auth.  cited. 

A  foreign  executor  who  has  filed 
the  requisite  papers  under  §  1836a 
of  the  New  York  Code  of  Civil 
Procedure  to  enable  him  to  sue 
in  a  New  York  court,  may  also 
sue  in  a  federal  court  in  New  York 
to  recover  debts  due  the  estate. 
Provident  Life  &  Trust  Co.  v. 
Fletcher,  237  Fed.  Rep.  104. 

80  Armstrong  v.  Lear,  12  Wheat. 
175. 

81  Pinney  v.  Pinney,  8  Barn.  & 
C.  335,  1  Wms.  Ex'rs,  6  Am.  ed. 
349;    Remick    v.    Butterfield,    31 
N.  H.  70,  84. 

82  Williams  v.  Jarrot,  6   111.    (1 
Gilm.)  120,  129. 

83  As  where  defendants  had  cove- 
nanted with  the  executors  as  such, 
Farnham  v.  Mallory,  2  Abb.  Ct. 
App.  Dec.  100;  or  where  the  alleged 
representative   had   as   such   con- 


172 


ACTIONS   BY   AND    AGAINST 


direct  proof  is  impossible,  indirect  evidence  may  suffice  to 
raise  a  presumption  that  letters  were  duly  granted.84 

The  letters,  since  they  are  founded  on  a  decree  granting 
administration,  are  not  the  only  evidence;  the  decree  itself 
may  be  proved.85  The  letters,  however,  are  competent  with- 
out the  decree.86  Unless  the  statute  makes  letters  testa- 
mentary sufficient  evidence,  an  executor  must  produce  also 
the  probate  of  the  will.87  The  identity  of  the  party  with  the 
one  named  in  the  letters  may  be  presumed  by  the  court  from 
absolute  identity  of  name,88  but  not  from  identity  of  sur- 


veyed to  defendant,  Bratt  v. 
Bratt,  21  Md.  578;  or  had  procured 
the  action  to  be  revived,  by  an 
order  of  court,  reciting  his  char- 
acter as  such.  McNair  v.  Ragland, 
1  Dev.  (N.  C.)  Eq.  539.  Contra, 
Shorter  v.  Urquhart,  28  Ala.  N.  S. 
360,  366. 

84Marcy  v.  Marcy,  6  Mete. 
(Mass.)  360;  Battles  v.  Holley,  6 
Greenl.  (Me.)  145. 

85  Farnsworth  v.  Briggs,  6  N.  H. 
561;  Elden  v.  Keddell,  8  East,  187, 
Ld.  Ellenborough.  But  if  the  de- 
cree grants  administration  on  con- 
dition, the  letters  should  be  pro- 
duced. Dale  v.  Roosevelt,  8  Cow. 
349.  In  some  courts,  however, 
performance  of  the  condition  will 
be  presumed.  See  paragraph  4, 
n.  1. 

Where  the  whole  record  of  pro- 
bate proceeding  is  introduced  in 
evidence  without  objection  to  es- 
tablish the  appointment  of  the 
executor,  it  is  improper  to  attack 
it  collaterally  on  cross-examination. 
Nickles  v.  Seaboard  Air  Line  Ry. 
Co.,  74  S.  C.  102, 54  S.  E.  Rep.  255. 

Where  there  is  a  controversy 
as  to  the  regularity  of  the  ap- 
pointment of  an  administrator, 


the  court  will  regard  his  status 
settled  upon  production  of  proof 
that  he  was  appointed  and  quali- 
fied, that  he  filed  annual  reports 
to  the  county  court  for  a  number  of 
years,  that  he  was  fully  recog- 
nized by  said  court  as  adminis- 
trator, that  after  a  contest  with 
the  heirs  he  made  a  compromise 
with  them  in  which  they  agreed  to 
his  final  settlement  and  discharge. 
Halbert  v.  Carroll  (Tex.),  25  S.  W. 
Rep.  1102. 

soRemick  v.  Butterfield,  31  N. 
H.  70,  84. 

An  administrator  has  the  right 
to  sue  for  personal  injuries  to  his 
intestate  who  was  an  alien,  al- 
though he  himself  is  an  alien. 
In  re  Bagnola  (Iowa),  154  N.  W. 
Rep.  461. 

87  3  Phil.  Ev.  75. 

By  statute  a  certified  copy  of 
letters  testamentary  is  sufficient 
evidence  of  the  appointment  of  the 
executor,  which  statute  super- 
sedes the  necessity  of  introducing 
the  whole  record  of  the  court  of 
probate.  Nickles  v.  Seaboard  Air 
Line  Ry.  Co.,  74  S.  C.  102,  54 
S.  E.  Rep.  255. 

88  Hatcher  v.  Rocheleau,  18  N.  Y. 


EXECUTORS   AND   ADMINISTRATORS 


173 


name.89    In  case  of  ambiguity  or  difference,  parol  evidence 
is  admissible  to  identify.90 

4.  Effect  of  Letters  as  Evidence. 

Letters  in  due  form,  granted  by  a  court,  within  the  State, 
and  having  jurisdiction,  are  at  common  law  presumed  to 
have  been  regularly  issued,  and  to  qualify  the  holder  to  sue 
and  be  sued; 91  and  the  giving  of  bond  and  taking  of  oath 
may  be  presumed.92  In  New  York  and  some  other  States, 
such  letters  are  conclusive  evidence  of  the  authority  of  the 
representative,  until  reversed. on  appeal,  or  revoked,93  and 


86.    Contra,  3  Wms.  Ex'rs,  6  Am. 
ed.  2060. 

Without  the  aid  of  a  statute  an 
executor  cannot  be  sued  outside 
of  the  State  which  granted  his 
letters.  Thorburn  v.  Gates,  225 
Fed.  Rep.  613. 

89  Fanning  v.  Lent,  3  E.  D.  Smith, 
206.     Contra,  Trimble  v.  Brichta, 
10  La.  Ann.  778. 

90  See  3  Abb.  N.  Y.  Dig.,  2ded. 
95. 

91  Westcott  v.  Cady,  5  Johns.  Ch. 
334,  343;  even  though  the  death  of 
the  decedent  was  presumed  from 
absence  for  less  than  seven  years. 
Newman  v.  Jenkins,  10  Pick.  515. 
The  seal  of  the  surrogate  may  be 
affixed    even    pending    the    trial, 
Maloney  v.  Woodin,  11  Hun,  202. 

Before  issuance  of  letters  the 
surrogate  can  make  judicial  in- 
quiry into  the  facts  upon  which 
his  jurisdiction  is  based;  the  letters, 
when  granted,  are  conclusive  evi- 
dence of  the  authority  of  the  admin- 
istrator, and  innocent  persons  deal- 
ing with  him  will  be  protected, 
even  though  it  should  develop 
later  that  the  person  upon  whose 


estate  the  letters  were  issued  is 
still  alive.  Roderigas  v.  East  River 
Savings  Tnst.,  63  N.  Y.  460,  20 
Am.  Rep.  555. 

92  Brooks  v.  Walker,  3  La.  Ann. 
150.  So  also  may  a  prior  resigna- 
tion creating  the  vacancy  filled  by 
the  letters,  Gray  v.  Cruise,  36 
Ala.  N.  S.  559;  but  only  if  the  sur- 
rogate had  power  to  accept  a  resig- 
nation. Flinn  v.  Chase,  4  Den. 
85. 

Where  the  plaintiff  sued  as  ad- 
ministratrix to  recover  for  the  death 
of  her  husband,  A  denial  of  the  al- 
legation that  the  letters  were  "duly 
issued"  raised  an  issue  and  enabled 
the  defendants  to  introduce  evi- 
dence of  fraud  or  collusion.  Web- 
ster v.  Kellogg  Co.,  168  App.  Div. 
443,  153  N.  Y.  Supp.  800. 

9»  N.  Y.  Code  Civ.  Pro.,  §  2560;  1 
Wms.  Ex'rs,  6  Am.  ed.  620,  n. 
(h) ,  and  cases  cited. 

The  introduction  of  letters  tes- 
tamentary to  the  plaintiffs  is 
sufficient  evidence  of  the  death 
of  the  testator,  and  of  an  order 
of  the  court  appointing  them 
as  his  executors.  Garthwaite  v. 


174  ACTIONS   BY   AND    AGAINST 

at  common  law  they  are  conclusive  as  to  the  authority  of 
the  representative  over  the  personalty.94  The  recital,  in 
the  letters,  of  the  jurisdictional  facts  is  primafatie  evidence 
that  they  existed,95  but  if  the  record  shows  that  the  statu- 
tory notice  to  parties  in  interest  was  not  given,  jurisdiction 
fails.96  The  fact  that  a  contest  is  pending  in  the  probate 
court  as  to  the  validity  of  the  letters,  does  not  impair  their 
effect,  whether  prima  facie  or  conclusive,  if  it  be  under 
statutes  which  impose  the  burden  of  proof  on  the  contest- 
ants.97 Letters  taken  out  pending  the  suit,  although  com- 
petent at  common  law,98  and  in  chancery,99  especially  where 
no  objection  was  made  by  pleading,  are  not  sufficient  under 
the  modern  practice,1  except  in  favor  of  or  against  one  who 
has  been  substituted  as  representative,2  or  who  is  enabled  to 
avail  himself  of  the  fact  of  appointment  under  supplemental 
pleading  or  pleadings  equivalent  in  effect.3 

What  has  been  said  as  to  the  effect  of  letters  is  applicable 
to  letters  issued  as  of  course,  on  producing  and  recording 
foreign  letters  in  the  probate  court,  unless  the  statute  au- 
thorizing this  proceeding,  or  the  foreign  statutes  under  which 
the  original  letters  were  granted,  indicate  a  different  rule.4 

Bank  of  Tulare,  134  Cal.  237,  66  »8  Thomas  ».  Cameron,  16  Wend. 

Pac.  Rep.  326.  579. 

The  appointment  of  an  adminis-  "  Osgood  v.  Franklin,  2  Johns, 

trator  de  bonis  non  can  be  attacked  Ch.   1;  Doolittle  v.  Lewis,  7  Id. 

collaterally    by    proof   that   there  45;  Goodrich  v.  Pendleton,  4  Johns, 

never  was  a  vacancy  in  the  ad-  Ch.  549. 

ministration.      Sands    v.    Hickey,  l  Thomas  v,  Cameron,  16  Wend. 

135  Ala.  322,  33  So.  Rep.  827.  579;  Varick  v.  Bodine,  3  Hill,  444; 

"Allen    v,    Dundas,    3    T.    R.  BerUnger  ».  Ford,  21  Barb.  311. 

125.  2  French    v.    Frazier's    Ad.,    7 

98  Farley  v.  McConnell,  52  N.  Y.  J.  J.  Marsh.  425,  432. 

630,  affi'g  7  Lans.  428;  Belden  v.  *  Haddow  v.  Lundy,  59  N.  Y. 

Meeker,   47   N.   Y.   307,   affi'g  2  320. 

Lans.  470.  4  See  on  this  subject  Parker  v. 

98  Randolph  v.   Bayne,  44   Cal.  Parker,   11  Gush.  519;  Dublin  v. 

366.  Chadbourn,  16  Mass.  433. 

97  Brown  v.  Burdick,  25  Ohio  St.  Where  a  copy  of  the  letters  tes- 

266.  tamentary    or    of    administration, 


EXECUTORS   AND   ADMINISTRATORS 


175 


5.  Impeaching  the  Letters. 

The  burden  of  proof  is  upon  one  who  disputes  the  authority 
of  an  executor  or  administrator,  on  the  ground  of  want  of 
jurisdiction.5  The  jurisdictional  facts  are  denned  by  statute, 
and  are  usually  death  and  assets,  under  the  prescribed  con- 
ditions as  to  domicile  and  location.^  These  matters  may  be 
disproved  if  the  validity  of  appointment  is  in  issue.7  But  the 


duly  authenticated,  is  filed  as  pro- 
vided by  §  1836a  of  the  New 
York  Code  of  Civil  Procedure, 
there  is  a  constitutional  and  proper 
authorization  for  an  action  against 
foreign  executors  to  determine 
ownership  of  property  located 
within  the  State  and  within  the 
jurisdiction  of  its  courts.  Holmes 
v.  Camp,  219  N.  Y.  359,  114  N. 
E.  Rep.  841. 

*  Welch  v.  N.  Y.  Central  R.  R. 
Co.,  53  N.  Y.  610. 

The  probate  court  having  recog- 
nized the  administrator  for  eight- 
een years,  and  all  parties  inter- 
ested in  the  estate,  including  the 
appellants,  having  unequivocally 
so  treated  him,  it  must  be  conclu- 
sively presumed  that  he  was  the 
legal  administrator  of  said  estate 
in  all  actions  where  his  acts  are 
collaterally  attacked.  Halbert  v. 
De  Bode,  15  Tex.  Civ.  App.  615, 
40  S.  W.  Rep.  1011. 

To  same  effect  Pendleton  v. 
Shaw,  18  Tex.  Civ.  App.  439,  44 
S.  W.  Rep.  1002. 

6  Comstock  v.  Crawford,  3  Wall. 
403,  2  R.  S.  of  N.  Y.  73,  §  23,  L. 
1837,  ch.  460,  §  1,  same  stat.  3  R. 
S.,  6th  ed.  326,  §  2;  Farley  v.  Mc- 
Connell,  52  N.  Y.  630,  affi'g  7 
Lans.  428. 


Where  the  statutes  provide  that 
no  person  shall  be  appointed  ad- 
ministrator who  is  neither  of  kin 
to  the  intestate,  nor  a  creditor,  nor 
otherwise  interested  in  the  grant  of 
administration,  the  prohibition  is 
imperative.  An  order  disregard- 
ing it  is  a  transgression  of  author- 
ity, is  utterly  null  and  void,  and 
may  be  so  declared  at  the  suit  of 
anyone  lawfully  concerned.  Jenn- 
ings v.  Smith,  232  Fed.  Rep.  921. 

The  petition  for  the  removal  of 
an  administrator  is  not  in  itself 
evidence  and  where  there  is  merely 
discussion  by  the  court  and  counsel 
on  proceedings  for  removal  and  no 
witnesses  are  sworn  or  other  tes- 
timony adduced  under  sanction  of 
an  oath,  the  removal  should  not  be 
ordered.  In  re  Bagnola  (Iowa), 
154  N.  W.  Rep.  461. 

7  Redf.  on  W.  57.  But  doubted, 
see  67  N.  Y.  380,  63  Id.  460.  The 
weight  of  the  decisions  on  this 
point  is  unpaired  by  two  consider- 
ations: Many  of  the  English  cases 
are  the  refusal  of  common-law 
courts  to  hold  themselves  bound 
by  purely  ecclesiastical  adjudica- 
tions. And  many  of  the  American 
cases  arose  at  a  time  when  "probate 
was  little  more  than  prima  fade 
authentication,  like  the  acknowl- 


176 


ACTIONS   BY   AND   AGAINST 


letters  cannot  be  impeached  by  proving  that  the  surrogate 
did  not  comply  even  with  the  requirements  of  the  statute 
expressed  to  be  conditions  precedent  of  his  action,  such  as 
examination  of  parties  in  oath,8  much  less  that  they  issued 
to  a  person  not  entitled,9  if  these  requirements  do  not  enter 
into  the  definition  of  the  jurisdiction  of  the  court,  and  do  not 
relate  to  the  notice  necessary  to  bind  the  adverse  party. 
Nor  can  the  letters  be  impeached,  as  to  personalty  at  least, 
by  showing  that  the  testator  was  incompetent,10  or  that  the 


edgment  or  proof  of  a  deed.  The 
tendency  of  recent  legislation  is  to 
make  the  decree  of  the  probate 
court  an  adjudication  hi  the  full- 
est sense.  See  63  N.  Y.  460. 
Whether  disproving  death  avoids 
the  letters  so  far  as  to  deprive  those 
who  have  acted  on  them  in  good 
faith,  of  their  protection,  see  Joch- 
umsen  v.  Suffolk  Bank,  3  Allen 
(Mass.),  87,  in  the  affirmative;  and 
Roderigues  v.  East  River  Bank, 
63  N.  Y.  460,  rev'g  48  How.  Pr. 
166,  in  the  negative.  See  later  de- 
cision in  76  N.  Y.  316. 

Adminsitration  of  an  estate  of 
one  supposed  to  be  dead  but  actu- 
ally living  is  void.  Stevenson  v. 
Montgomery,  263  111.  93,  104  N.  E. 
Rep.  1075,  Ann.  Gas.  1915,  C.  112. 

s  Farley  v.  McConnell,  52  N.  Y. 
630,  affi'g  7  Lans.  428. 

When  a  person  dies  intestate 
leaving  no  widow  and  no  indebt- 
edness and  there  is  nothing  to  be 
done  by  way  of  administration  of 
the  estate  except  the  division  of  it 
among  the  heirs,  such  heirs  may 
settle  the  estate  without  an  admin- 
istrator, and  they  may  resist  the 
appointment  of  one  or  may  bring 
suit  to  set  aside  the  appointment 


if  one  is  made,  and  thereby  remove 
him.  Under  such  circumstances 
there  being  no  administrator,  the 
heirs  sue  in  their  individual  names 
to  recover  a  demand  due  the  deced- 
ent hi  his  lifetime,  but  it  is  neces- 
sary in  such  cases  to  allege  and 
prove  that  there  is  no  administra- 
tion pending  and  no  administra- 
tor. Craig  v.  Norwood,  61  Ind.  A. 
104,  108  N.  E.  Rep.  395. 

9  Comstock  v.  Crawford,  3  Wall. 
403. 

10  3  Redf .  on  W.  57,  1  Wins,  on 
Ex'rs,  6th  Am.  ed.  618.     Contra, 
see  2  Whart.  Ev.,  §  811. 

Where  the  statutes  have  specif- 
ically denned  all  of  the  acts  and 
facts  justifying  a  refusal  to  issue 
letters  to  one  othecwise  entitled, 
the  courts  have  no  right  to  add  any 
other  grounds  of  incompetency  or 
disqualification.  In  re  McCaus- 
land,  170  Cal.  134,  148  Pac.  Rep. 
924. 

The  mere  fact  that  a  person  is 
both  administrator  and  a  creditor 
of  an  estate,  is  not  a  legal  objec- 
tion to  his  acting  as  administrator. 
Metropolitan  Trust  Co.  v.  Stallo, 
156  App.  Div.  639,  152  N.  Y.  Supp. 
183. 


EXECUTORS   AND   ADMINISTRATORS  177 

will  was  forged;  n  but  fraud  in  obtaining  the  letters  is  com- 
petent,12 unless,  the  statute  affords  an  exclusive  remedy  in 
the  probate  court.  The  minutes  of  the  surrogate  are  not 
rendered  incompetent  because  the  statute  provides  that  the 
testimony  must  be  entered  in  a  book  and  preserved  as  part 
of  the  record.13 

6.  Best  and  Secondary  Evidence  of  Authority. 

If  the  pleadings  require  a  party  to  prove  his  adversary's 
authority  as  executor  or  administrator,  it  is  best  to  give  him 
notice  to  produce  at  the  trial  the  letters  or  probate,  or  both, 
as  the  case  may  require,  unless  the  party  is  prepared  to  pro- 
duce the  decree  or  an  exemplified  copy  of  the  letters  as  pri- 
mary evidence.  But  it  is  not  necessary,  in  order  to  let  hi 
secondary  evidence,  to  prove  that  the  probate  or  letters  are 
in  the  adversary's  possession ;  for  proof  that  he  has  been  duly 
appointed  executor  or  administrator  raises  a  sufficient  pre- 
sumption that  they  are  in  his  possession  to  let  in  secondary 
proof.14 

11  Allen  v.  Dundas,  3  T.  R.  125,      shows  admissions  by  her  that  she 
Steph.  Ev.  48.  had  never  been  married  to  him, 

A  foreign  counsel  generally  has  the  letters  will  be  revoked  if  such 

the  initial  right  to  administer  upon  admissions  remain  undenied.     In 

the  property  of  a  subject  of  the  re  Morris,  157  N.  Y.  Supp.  472, 

county  he  represents,  but  the  courts  92  Misc.  630. 

have  power  to  remove  him  as  such.  13  Haddow  v.  Lundy,  59  N.  Y. 

In  re  Bagnola  (Iowa),  154  N.  W.  320. 

Rep.  461.  H  Wms.  Ex'rs,  6th  Am.  ed.  2059. 

Informality  in  a  petition  for  the  A  paper  imperfectly  showing  the 

appointment  of  an  administrator  will  and  its  probate,  if  shown  to 

does  not  subject  the  appointment  have  been  acted  on  as  such  by  the 

to  collateral  attack.    Christiansen  representative,    may    be    compe- 

».  King  County,  239  U.  S.  356,  36  tent    secondary    evidence   against 

S.  Ct.  114,  60  L.  ed.  327.  him  of  an  admission  in  the  will 

12  Ex  parte  Joliffe,  8  Beav.  168,  binding  the  estate,  notice  to  pro- 
and    see    Stilwell  v.  Carpenter,  3  duce  the  original  probate  having 
Abb.  N.  Gas.  263.  been  given  to  him  and  disregarded. 

Where  letters  were  granted  to      3  Wms.  Ex'rs  [2004],  citing  Gordon 
one  claiming  to  be  the  widow  of      v.  Dyson,  1  Brod.  &  B.  219. 
the    decedent    and    the    evidence 


178  ACTIONS   BY   AND   AGAINST 

7.  Representative's  Declarations  and  Admissions  Compe- 
tent Against  the  Estate. 

The  admissions  and  declarations  of  an  executor  or  ad- 
ministrator, made  while  he  was  clothed  with  official  authority 
as  such,  are  competent  in  evidence  against  the  estate  while 
represented  in  the  action,  either  by  him  15  or  by  his  suc- 
cessor in  the  administration.16  But  an  admission  by  an  ad- 
ministrator or  executor  is  not  binding  as  against  the  estate, 
unless  made  while  he  was  engaged  in  his  representative  ca- 
pacity hi  the  performance  of  a  duty  to  which  the  admission 
was  pertinent  so  as  to  constitute  it  a  part  of  the  res  gestce.17 

15Faunce  v.  Gray,  21  Pick.  243;  "Davis  v.  Gallagher,  124  N.  Y. 

Eckert  v.  Triplett,  48  Ind.  174,  s.  c.,  487,  26  N.  E.  Rep.  1045. 

17  Am.  R.  735,  1  Greenl.  Ev.  215.  An   admission   by   an   adminis- 

Contra,  Allen  v.  Allen,  26  Mo.  .327;  trator  with  respect  to  the  allow- 

Crandall  v.  Gallup,  12  Conn.  372,  ance  of  a  claim  against  the  estate, 

and  cases  cited.    The  contrary  has  having  been  made  in  the  discharge 

also  been  held  of  loose  oral  declara-  of  his  duties  as  such,  binds  the  es- 

tions  to  a  third  person,  because  the  tate  to  that  extent.     Meinert  v. 

representative  was  deemed  to  have  Snow,  3  Ida.  (Hasbr.)  112,  27  Pac. 

no  interest,  no  adequate  informa-  Rep.  677. 

tion,  and  no  legal  duty.    Hueston  The  admissions  of  an  adminis- 

v.  Hueston,  2  Ohio  St.  488;  and  in  trator   in    a    legal    proceeding   in 

Ciples    v,    Alexander,    2    Const,  which   he   resists   claims   to   take 

(Treadw.  S.  C.)  767,  it  was  held  away  part  of  the  estate  and  an- 

that  a  bare  oral  admisson  is  not  swers  legitimate  inquiries  relating 

enough  to  sustain  a  recovery;  s.  p.,  to  the  subject  of  his  trust,   are 

Jones  v.  Jones,  21  N.  H.  219.    The  competent  and  part  of  the  res  ges- 

better  opinion  is  that  the  admis-  tee.    Whiton  v.  Snyder,  88  N.  Y. 

sion  is  competent,  and  if  explicit  299. 

and  unexplained,  sufficient  to  go  to  The  conversation  of  an  adminis- 

the  jury.    As  to  an  account  stated  trator  at  a  time  when  he  was  not 

with  the  representative,  see  1  Wms.  acting  in  the  discharge  of  his  du- 

Ex'rs  [1947],  n.  f.;  N.  Y.  Code  Civ.  ties  as  such,  and  when  no  business 

Pro.,  §  395;  Young  v.  Hill,  67  N.  was  transacted,  connected  with  or 

Y.  192,  and  cases  cited.  relating  in  any  way  to  the  estate, 

18  Lashlee  v.  Jacobs,  9  Humph,  is   not   binding   upon   the   estate. 

718;    Eckert  v.  Triplett    (above);  The  act  should  be  such  as  called 

Matoon  v.  Clapp,  8  Ohio,  248;  con-  for  and  made  the  declarations  or 

tra,  Pease  v.  Phelps,  10  Conn.  62,  statements  pertinent,  and  the  dec- 

68.  larations  or  statements  should  ac- 


EXECUTORS   AND   ADMINISTRATORS 


179 


Mere  declarations  or  admissions,  as  distinguished  from  acts, 
do  not  bind  the  representative,18  but  he  may  explain  or  con- 
tradict them.  Declarations  and  admissions  made  before 
he  was  fully  clothed  with  the  trust,19  or  after  he  was  removed 
are  not  competent,  as  against  the  estate,  to  affect  the  par- 
ties beneficially  interested  other  than  himself,  except  per- 
haps to  prove  his  knowledge  of  the  fact  admitted.  Where 
there  are  several  co-representatives,  the  admissions  and 
declarations  of  one  are  not  competent  against  the  others, 
either  to  establish  the  demand  as  an  original  one,20  or  to 
revive  the  debt  after  the  limitation  has  passed.21  But  proof 


company  such  act,  so  as  to  consti- 
tute a  part  of  the  res  gestoe 
Church  v.  Howard,  79  N.  Y.  415. 

18  To  this  extent  the  principle 
in  Rush  v.  Peacock,  2  Moody  & 
Rob.  162,  is  sound. 

i»  Moore  v.  Butler,  48  N.  H.  161, 
170;  Fenwick  v.  Thornton,  M.  & 
M.  51,  ABBOTT,  C.  J.;  Legge  v. 
Edmonds,  25  L.  J.  Ch.  125,  141,  1 
Greenl.  Ev.  217,  §  179.  See  contra, 
TINDAL,  J.,  in  Smith  v.  Morgan,  2 
M.  &Rob.  257.  "Perhaps  the  ad- 
missibility  of  statements  made  by 
executors,  assignees,  and  others 
filling  an  official  character,  but  be- 
fore they  were  invested  with  that 
character,  will  be  found  to  depend 
on  the  nature  of  the  facts  stated  by 
them.  So  an  admission,  before 
probate,  by  an  executor  named  in 
a  will  may  perhaps  be  entitled  to 
more  consideration  than  the  ad- 
mission of  a  mere  stranger  who 
has  afterwards  obtained  letters  of 
administration."  Rose.  N.  P. 
72. 

Declarations  made  by  one  be- 
fore he  qualified  as  administrator 
are  not  binding  upon  the  estate. 


Gaines  v.  Alexander,  7  Gratt. 
(48  Va.)  257. 

One  who  interferes  with  the  prop- 
erty of  a  deceased  person  and  sells 
a  portion  thereof  without  right,  and 
is  afterwards  appointed  adminis- 
trator of  the  estate  of  such  deceased 
person,  will  not  be  estopped  by  his 
prior  acts  from  recovering  the  prop- 
erty for  the  estate.  Gilkey  v. 
Hamilton,  22  Mich.  283. 

Evidence  of  transactions  with 
an  administrator  occurring  after 
the  death  of  the  deceased,  is  com- 
petent. Parrish  v.  Vancil,  132  111. 
App.  495. 

2"  1  Greenl.  Ev.  215,  §  176.  This 
rule,  originally  founded  on  the 
fact  that  otherwise  those  not  ad- 
mitting might  be  rendered  per- 
sonally liable,  Hammon  v.  Huntley, 
4  Cow.  493,  has  been  reiterated 
since  the  reason  failed.  Elwood  v. 
Diefendorf,  5  Barb.  407. 

21  Tullock  v.  Dunn,  Ry.  &  Moo. 
416;  Bloodgood  v.  Bruen,  8  N.  Y. 
(4  Seld.)  362,  rev'g  4  Sandf.  427. 
Contra,  Shreve  v.  Joyce,  36  N.  J. 
Law,  44;  s.  c.,  13  Am.  Rep.  417. 
Otherwise  of  an  act  such  as  part 


180  ACTIONS   BY   AND   AGAINST 

of  an  admission  of  a  fact  by  one  is  admissible,  because  it  may 
be  followed  up  by  .proof  of  a  similar  admission  by  all  the 
others.  If  not  thus  followed,  the  judge  should  instruct  the 
jury  to  disregard  it.22 

8.  The  Decedent's  Declarations  and  Admissions. 

If  the  executor  or  administrator  sues  or  defends,  by  vir- 
tue of  his  character  as  such,  evidence  of  the  declarations 
and  admissions  made  by  the  decedent  in  his  lifetime  is  com- 
petent against  the  representative,23  and  even  the  decedent's 
declarations  as  to  the  value  of  his  property  are  competent 
on  the  inquiry  whether  the  administrator  has  made  proper 
effort  to  administer  the  estate;  but  they  are  not  binding, 
as  declarations,  upon  the  administrator,  so  as  to  charge  him 
with  that  amount  of  assets.  Upon  a  question  of  due  admin- 
istration, an  executor  or  administrator  is  not  concluded  by 
the  statements  of  the  deceased,  but  is  only  bound  to  a  faith- 
ful attempt  to  realize  the  largest  amount  from  the  assets 
which  have  come  to  his  knowledge.24  But  the  decedent's 
admissions  and  declarations  are  not  competent  in  favor  of 
the  representative,  unless  some  rule  of  evidence  would 
admit  them  in  favor  of  the  decedent  if  living,  as,  for  instance, 
where  they  were  part  of  the  res  gestce  of  an  act  properly  in 
evidence.25 

payment,  made  before  the  statute  24Ginochio  v.  Porcella,  3  Bradf. 

has   run.     Heath    v.    Grenell,    61  277, 280. 

Barb.  190;  see  also  3  Wms.  Ex'rs,  25  Chase  v.  Ewing,  51  Barb.  597, 

6th  Am.  ed.  2063.  615;  Rickets  v.  Livingston,  2  Johns. 

"Forsyth  v.  Ganson,  5  Wend.  Cas.  97;  Cheeseman  v.  Kyle,   15 

558.  Ohio  St.  15.    In  an  action  by  an 

23  Smith  v.  Smith,  3  Bing.  N.  C.  executor  to  establish  the  ownership 
29;  s.  c.,  7  C.  &  P.  401;  Cunning-  of  property  claimed  to  be  the  prop- 
ham  v.  Smith,  70  Penn.  St.  458,  erty  of  the  testator,  declarations 
citing  Newman  v.  Jenkins,  10  Pick,  made  by  the  testator  to  a  third 
515.  As  to  proving  a  trust,  com-  person  are  not  evidence  to  estab- 
pare  Harrisburgh  Bank  v.  Tyler,  lish  the  executor's  claim.  Phila. 
3  Watts  &  S.  373;  Barker  v.  White,  Trust.,  etc.,  Co.  v.  Phila.,  etc.,  R. 
58  N.  Y.  204.  Co.,  177  Penn.  St.  38,  35  Atl.  Rep. 

688. 


EXECUTORS   AND    ADMINISTRATORS  181 

The  delivery  of  property,  necessary  to  the  validity  of  a 
gift  in  view  of  death,  cannot  be  proved  by  subsequent  dec- 
larations of  the  deceased,  shortly  before  death,  to  a  person 
not  connected  with  the  gift.  But  subsequent  declarations 
made  to  the  donee,  are  competent.26  And  when  the  words  of 
the  decedent  accompanying  the  gift  are  ambiguous,  parol 
declarations  of  his  intention,  made  previously  or  afterward, 
are  competent  to  explain  the  intent.27 

9.  Judgments. 

The  executor  or  administrator  is  bound  by  a  judgment 
recovered  by  or  against  the  decedent,  or  by  or  against  the 
representative's  predecessor  in  administration.28  And  where 
an  administrator,  or  administrator  with  the  will  annexed, 
is  appointed  here,  upon  application  of  the  foreign  executors 
or  administrators  of  the  same  decedent,  he  is  regarded  as  an 
ancillary  administrator;  and  a  decree  of  the  foreign  courts  of 
competent  jurisdiction  against  the  foreign  representatives  is 
competent  and  prima  facie  evidence  against  him.29 

10.  Testimony  of  the  Representative. 

Where  an  executor  or  administrator  is  examined  under 

26 1  Wms.  Ex'rs,  6th  Am.  ed.  858,  his  own  favor  may  also  be  proven, 

n.     Compare   Hunter  v.   Hunter,  under   §  732,  L.   0.    L.,   subd.   2. 

19  Barb.  631.  Beard  v.  Beard,  66  Ore.  526,  133 

"Declarations  of  a  donor  after  a  Pac.  Rep.  795. 
gift  and  in  derogation  of  that  gift          2aSteele  v.  Lineberger,  59  Penn. 

are  incompetent."    Hilton  v.  Rahr,  St.  308,  313;  Manigault  v.  Deas,  1 

161  Wis.  619,  155  N.  W.  Rep.  116.  Bailey  Eq.  283,  295,  3  Wms.  Ex'rs, 

27  Smith  v.  Maine,  25  Barb.  33,  6th  Am.  ed.  2115. 
48.    As  to  proving  a  gift,  see  also          M  Cummings  v.  Banks,  2  Barb. 

p.  19  of  this  vol.  602;  and  see  26  N.  Y.  146;  and  is 

When  a  party  to  an  action  by  or  conclusive  here  on  the  parties  to  the 

against  an  administrator  or  execu-  foreign  suit.    3  Bradf.  233. 
tor  appears  as  a  witness  in  his  own         A  judgment  against  an  adminis- 

behalf ,  or  offers  evidence  of  state-  trator  is  not  a  lien  on  his  individual 

ments    made    by    the    deceased  property.    Lane  v.  Cohen,  141  Ga. 

against  the  interest  of  the  deceased,  501,  81  S.  E.  Rep.  128;  Collier  r. 

statements   of  the  deceased   con-  Gannon,  40  Okla.  275,   137  Pac. 

cerning  the  same  subject-matter  in  Rep.  1179. 


182 


ACTIONS   BY   AND   AGAINST 


oath  by  an  adverse  party,  his  whole  statement  must  be 
taken  together;  and  a  part  tending  to  charge  him  cannot  be 
separated  from  a  part  tending  to  explain  it  and  operating  in 
his  favor.30 

11.  Testimony  of  Interested  Persons  Against  the  Estate. 

Since  the  common-law  incompetency  resulting  from  in- 
terest has  been  removed,  the  question  of  the  value  of  an  in- 
terested witness'  testimony  against  a  decedent's  estate  has 
been  much  discussed.  The  English  courts,  without  any  ex- 
press statute,  hold  that  the  testimony  of  a  party  to  personal 
transactions  with  the  deceased,  which  exonerate  himself, 
is  not  sufficient,  at  least  in  equity,  to  sustain  a  decree,  unless 
corroborated.31 


8(1  Ogilvie  v.  Ogilvie,  1  Bradf .  356. 
For  the  limits  of  this  rule,  see 
Rouse  v.  Whited,  25  N.  Y.  170, 
rev'g  25  Barb.  279. 

An  administrator  cannot  testify 
as  to  statements  made  by  the  de- 
cedent as  to  the  sale  of  certain 
goods  upon  which  he  is  endeavor- 
ing to  enforce  a  lien.  Watson  v. 
Appleton,  183  Ala.  514,  62  So. 
Rep.  765. 

31  Hill  v.  Wilson,  L.  R.  8  Ch.  App. 
888,  s.  c.,  7  Moak's  Eng.  449; 
Gray  v.  Warner,  L.  R.  16  Eq.  577; 
s.  c.,  7  Moak's  Eng.  591.  "No- 
body would  be  safe  in  respect  to 
his  pecuniary  transactions,  if  legal 
documents  found  hi  his  possession 
at  the  time  of  his  death,  and  en- 
deavored to  be  enforced  by  his 
executors,  could  be  set  aside,  or 
varied,  or  altered,  by  the  parol  evi- 
dence of  the  person  who  had  bound 
himself.  It  would  be  very  easy,  of 
course,  for  anybody  who  owed  a 
testator  a  debt  to  say,  ...  'I 


met  the  testator  and  gave  him  the 
money.'  The  interests  of  justice 
and  the  interests  of  mankind  re- 
quire that  such  evidence  should  be 
wholly  disregarded."  James,  L.  J., 
in  Hill  v.  Wilson  (above).  Contra, 
Ford  v.  Haskell,  32  Conn.  489,  492, 
where  the  court  say  it  is  a  question 
of  credibility,  as  in  case  of  testi- 
mony of  an  accomplice  in  a  crim- 
inal case. 

In  Alaska  the  restriction  against 
testimony  concerning  transactions 
and  communications  with  a  deced- 
ent has  not  always  existed.  Corbus 
v.  Leonhardt,  51  Circ.  Ct.  App.  636, 
114  Fed.  Rep.  10;  Summers  v. 
United  States,  231  U.  S.  92,  34 
Super.  Ct.  38,  58  L.  ed.  137. 

In  order  to  disqualify  a  witness 
under  Rev.  St.,  §  6354,  he  must  be 
both  interested  in  the  event  and  a 
party.  Ham,  etc.,  Lead,  etc.,  Inv. 
Co.  v.  Catherine  Lead  Co.,  251 
Mo.  721,  158  S.  W.  Rep.  369. 


EXECUTORS   AND   ADMINISTRATORS  183 

The  general  policy  of  the  American  statutes  is  to  restrain 
the  admission  of  the  testimony  of  a  party  or  interested  wit- 
ness, as  against  the  estate  of  a  deceased  person  or  the  inter- 
est of  one  succeeding  to  his  right.  The  ground  of  the  rule 
is,  that,  although  parties  and  interested  witnesses  are  made 
generally  competent,  some  exception  should  be  made  where 
.the  adversary  in  the  controversy  is  deceased.  The  law  pre- 
fers to  admit  all  parties;  but  when  death  silences  one,  the 
law  will  silence  the  other  as  to  matters  peculiarly  within  their 
sole  knowledge.  The  statutes  for  this  purpose  are  very  di- 
verse. Some  reach  the  result  by  forbidding  parties  and  in- 
terested witnesses  from  testifying  in  all  actions  where  the 
opposite  party  is  an  executor  or  administrator.  Others 
where  the  action  is  on  a  contract,  etc.,  with  one  since  de- 
ceased. Others  attempt  to  define  the  line  with  more  dis- 
crimination. Where  the  statute  is  a  mere  proviso  or  saving 
clause  in  the  act  abolishing  the  common-law  disqualification 
of  interest,  it  does  not  make  incompetent  such  testimony 
as  would  be  competent  at  common  law; 32  but  where  it  is  a 
new,  independent  and  affirmative  provision,  it  does  exclude 
the  kind  of  testimony  described  by  it,  although  such  as 
would  have  been  previously  competent.33  Whatever  be 

"Sheetz    v.    Norris,    2    Weekly  all  witnesses  who  were  competent 

Notes   (Pa.),  637.     The  common-  before  its  passage  will  be  competent 

law  exception,  from  necessity,  in  thereafter.     Packer  v.  Noble,  103 

case  of  contents  of  baggage,  etc.,  Pa.  188. 

was  admitted  in  Sykes  v.  Bates,  26  Where  there  is  no  evidence  that 

Iowa,  521;  s.  P.,  Nash  v.  Gibson,  witnesses  were  necessarily  parties 

16  Id.  305.  to  the  issues  or  that  they  had  any 

A  witness  who  is  qualified  to  interest  in  the  controversy  which 

testify  at  common  law  will  not  be  was  adverse  to  the  estate  it  is  error 

disqualified  by  the  statute  prohib-  to  refuse  to  allow  them  to  testify, 

iting  testimony   concerning  trans-  Craig  v.  Norwood  (Ind.  App.),  108 

actions  with  a  decedent.    Fink  v.  N.  E.  Rep.  395. 

Hey,  42  Mo.  App.  295.  33  Mattoon  v.  Young,  45  N.  Y. 

The    statute    prohibiting    testi-  696. 

mony  as  to  communications  with  Under  R.  &  B.  Code,  §  1211,  a 

a  deceased  person  is  an  enabling,  party  to  an  action  brought  by  an 

rather  than  a  disabling  statute,  and  administrator  cannot  testify  as  to 


184 


ACTIONS   BY   AND    AGAINST 


the  frame  of  the  statute,  its  object  and  the  general  guide  in 
its  construction  is  to  apply  the  exclusion  hi  such  manner  as 
to  put  both  parties  on  an  equality; 34  but  the  court  will  not 
do  violence  to  the  plain  language  of  the  statute  for  the  pur- 
pose of  securing  this  effect.35  Difficulties  of  this  kind  are  less 
frequent  in  proportion  as  the  statute  is  so  framed  as  to  define 
the  exclusion  by  the  kind  of  testimony  rather  than  by  the 
class  of  actions  or  parties.  The  New  York  statute,  and  those 
modeled  from  it,  have  been  the  most  successful  in  this  re- 
spect. That  act  addresses  the  prohibition  to  the  actual 
source  of  danger,  viz.,  the  version  by  an  interested  person, 
of  his  interview  with  one  who  can  no  longer  contradict  him. 


communications  with  the  deceased. 
Shorett  v.  Knudson,  74  Wash.  448, 
133  Pac.  Rep.  1029. 

The  testimony  of  a  witness,  since 
deceased,  in  an  action  of  ejectment 
brought  by  a  life  tenant  against  a 
defendant  in  possession,  will  be 
admitted  in  evidence  in  a  subse- 
quent action  brought  by  the  re- 
maindermen of  such  life  tenant 
against  the  same  defendant.  Shook 
v.  Fox,  126  N.  Y.  App.  Div.  565, 
110  N.  Y.  Supp.  951. 

34McGeehee  v.  Jones,  41  Geo. 
123;  Brown  v.  Brightman,  11  Allen 
(Mass.),  226;  Louis  v.  Easton,  50 
Ala.  470;  Jones  v.  Jones,  36  Md. 
457;  Poe  v.  Domic,  54  Mo.  124; 
Hubbell  v.  Hubbell,  22  Ohio  St. 
208;  Key  v.  Jones,  52  Ala.  238; 
Latimer  v.  Sayre,  45  Geo.  468. 

Under  Revised  Code,  1893,  p. 
798,  neither  party  to  an  action  by 
or  against  administrators  shall  be 
allowed  to  testify  against  the  other 
as  to  transactions  with  the  de- 
ceased. Green  v.  Wilmington  Trust 
Co.,  27  Del.  232, 87  Atl.  Rep.  885. 

Civ.  Code,  1910,  §  5858,  makes 


the  restriction  against  testimony  as 
to  communications  with  a  decedent 
absolute,  and  permits  no  excep- 
tions. Jarrard  v.  Hawes,  13  Ga. 
App.  470,  79  S.  E.  Rep.  373. 

Under  How.  Ann.  St.,  §7545, 
the  restriction  against  testimony 
as  to  transactions  with  a  decedent 
is  absolute.  Barker  v.  Hebbard,  81 
Mich.  267,  45  N.  W.  Rep.  964. 

85  For  cases  where  the  courts  have 
refused  to  do  so,  see  Brown  v. 
Lewis,  9  R.  I.  497;  Roberts  v.  Yar- 
boro,  41  Tex.  451;  Howe  v.  Mer- 
rick,  11  Gray  (Mass.),  129;  Ballou 
v.  Tilton,  52  N.  H.  607;  Graham  v. 
Howell,  50  Geo.  203;  Crawford  v. 
Robie,  42  N.  H.  162. 

No  exceptions  will  be  made  to 
the  rule  preventing  interested  wit- 
nesses from  testifying  as  to  transac- 
tions with  a  decedent  unless  ex- 
pressly allowed  by  the  statute. 
Blair  v.  Ellsworth,  55  Vt.  415. 

Where  the  statute  speaks  only 
of  actions  against  an  administrator 
it  applies  also  to  actions  by  an  ad- 
ministrator. Ewing  v.  White,  8 
Utah,  250,  30  Pac.  Rep.  984. 


EXECUTORS   AND   ADMINISTRATORS  185 

To  prevent  evasion,  the  prohibition  is  made  applicable  not 
only  to  parties  on  the  record  and  parties  having  an  interest 
in  the  result,  but  to  assignors  and  others  through  whom  a 
party  claims.  To  prevent  unequal  application,  it  is  not  en- 
forceable against  one  side  when  the  other  side  has  put  for- 
ward the  testimony  of  the  person  since  deceased. 

12.  The  New  York  Rule. 

The  statute  is  as  follows:  "Upon  the  trial  of  an  action  or 
the  hearing  upon  the  merits  of  a  special  proceeding,  a  party 
or  a  person  interested  in  the  event,  or  a  person  from,  through 
or  under  whom  such  a  party  or  interested  person  derives 
his  interest  or  title,  by  assignment  or  otherwise,  shall  not  be 
examined  as  a  witness,  in  his  own  behalf  or  interest,  or  in 
behalf  of  the  party  succeeding  to  his  title  or  interest,  against 
the  executor,  administrator  or  survivor  of  a  deceased  person, 
or  the  committee  of  a  lunatic,  or  a  person  deriving  his  title 
or  interest  from,  through  or  under  a  deceased  person  or 
lunatic,  by  assignment  or  otherwise,  concerning  a  personal 
transaction  or  communication  between  the  witness  and  the 
deceased  person  or  lunatic;  except  where  the  executor,  ad- 
ministrator, survivor,  committee,  or  person  so  deriving  title 
or  interest,  is  examined  in  his  own  behalf, — or  the  testimony 
of  the  lunatic  or  deceased  person  is  given  in  evidence,  con- 
cerning the  same  transaction  or  communication.  A  person 
shall  not  be  deemed  interested  for  the  purposes  of  this  sec- 
tion by  reason  of  being  a  stockholder  or  officer  of  any  bank- 
ing corporation  which  is  a  party  to  the  action  or  proceeding, 
or  interested  in  the  event  thereof."  ^ 

36  N.  Y.  Code  Civ.  Pro.,  §  829,  has  been  paid  by  the  executor  and 

A  stockholder  in  a  bank  which  is  a  for  which  he  is  seeking  to  be  al- 

party  is  not  deemed  interested.    Id.  lowed  credit,  as  against  contesting 

In  a  proceeding  to  settle  an  execu-  residuary     legatees.       Matter    of 

tor's  account,  the  executor  is  pre-  Smith,  153  N.  Y.  124. 
eluded  from  testifying  to  conversa-          Code  Civ.  Pro.,  §  829,  will  apply 

tions  with  the  testator  concerning  to  a  trial  by  a  jury  of  a  special 

the  basis  of  the  claim  of  a  third  question   in   an   equitable   action, 

person  against  the  estate,   which  which   is   a   judicial   investigation 


186 


ACTIONS   BY   AND    AGAINST 


13.  What  Parties  are  Excluded. 

A  party  to  the  action  or  proceeding  cannot  be  thus  ex- 
amined in  his  own  behalf  or  interest,  or  in  behalf  of  the  party 
succeeding  to  his  title  or  interest.37 


equivalent  to  the  "trial  of  an  ac- 
tion." Parks  v.  Andrews,  56  Hun 
(N.  Y.),  391, 10  N.  Y.  Supp.  344. 

One  is  not  "a  person  interested 
in  the  event"  under  §829  of  the 
Code  merely  because  the  outcome 
may  save  him  the  trouble  of  an- 
other law  suit.  There  is  a  differ- 
ence between  an  interest  in  the 
event  and  an  interest  merely  in 
the  question.  To  make  out  an  in- 
terest in  the  event,  the  judgment 
must  not  merely  leave  open  the 
possibility  of  another  action.  It 
must  be  evidence  in  the  other  ac- 
tion, and  evidence  adverse  to  the 
witness.  Franklin  v.  Kidd,  219 
N.  Y.  409,  114  N.  E.  Rep.  839. 

An  interest  sufficient  to  dis- 
qualify him  must  not  be  "uncer- 
tain, remote  or  contingent."  Gain 
or  loss  must  result  to  him  from  the 
judgment  in  its  direct  or  immediate 
operation.  Id. 

"Where  the  statute  is  not  in 
terms  restricted  to  a  party  called 
on  his  own  behalf,  etc.,  etc.,  the 
courts  do  not  restrict  it  by  con- 
struction, but  exclude  a  party  called 
for  a  co-party.  Bennett  v.  Austin, 
5  Hun,  536;  Alexander  v.  Dutcher, 
7  Hun,  439;  Blood  v.  Fairbanks, 
50  Cal.  140;  and  even  though 
he  has  no  interest  adverse  to  the 
executor  or  administrator,  as,  for  in- 
stance, where  they  are  co-defend- 
ants, Blood  v.  Fairbanks  (above); 
and  though  he  might  have  been 


sued  separately,  e.  g.,  the  indorser, 
sued  with  the  maker.  Fox  v. 
Clark,  61  Barb.  216,  n.;  Alexander 
v.  Dutcher  (above).  The  better 
opinion  is  that  after  an  action 
against  two  has  been  practically 
severed  for  the  purposes  of  trial — 
for  example,  by  a  dismissal  of  the 
action  against  one  on  his  discharge 
in  bankruptc}*-,  Hayden  t1.  Mc- 
Knight,  45  Geo.  147;  or  by  a  judg- 
ment against  them  on  default  being 
opened  in  favor  of  one  only,  to 
allow  him  to  set  up  a  defense  per- 
sonal to  himself,  Simpson's  Ex'r 
v.  Bovard,  74  Penn.  St.  351,  360— 
the  disqualification  of  the  one  who 
will  not  be  affected  by  the  trial 
is  terminated;  but  in  New  York, 
on  the  contrary,  it  was  held  that 
though  the  court  might  in  its  dis- 
cretion sever  the  action,  a  party 
on  the  record  could  not,  so  long 
as  he  remained  a  party,  be  thus 
examined,  against  or  for  another 
party.  Genet  v.  Lawyer,  61  Barb. 
211;  and  the  fact  that  the  defend- 
ant who  was  offered  as  a  witness, 
did  not  put  hi  an  answer,  but 
suffered  default,  did  not  sufficiently 
sever  the  action  or  discontinue  it 
as  to  him.  Id.  Nor  did  the  fact 
that  the  plaintiffs  executed  a  re- 
lease to  him  affect  the  question. 

In  Hubbell  r.  Hubbell,  22  Ohio 
St.  208,  226,  the  court  sanctioned 
practically  severing  any  action  and 
admitting  the  evidence  against 


EXECUTORS   AND   ADMINISTRATORS 


187 


14.  What  Interested  Witnesses  are  Excluded. 

No  person  can  be  thus  examined  in  his  own  behalf  or  in- 


one  and  excluding  it  as  against 
the  other,  wherever  separate  judg- 
ments would  be  proper.  Under 
a  statute  which  excludes  only  in  a 
case  where  judgment  might  be 
rendered  for  or  against  an  executor 
or  administrator,  it  is  held  that, 
on  the  entire  abatement  of  an  ac- 
tion as  to  an  administrator  not 
served,  or  as  to  a  party  dying,  he 
ceases  to  be  a  party  within  the 
rule.  Hall  v.  The  State,  39  Ind. 
301;  Roberts  v.  Yarboro,  41  Tex. 
451.  The  word  "party"  has  been 
held  to  include  a  party  in  inter- 
est, though  not  on  the  record. 
Stallings  v.  Hinson,  49  Ala.  92. 
Especially  if  his  interest  is  such 
that  it  will  be  necessary  to  bring 
him  in  as  a  party.  McKaig  v. 
Hebb,  42  Md.  227. 

One  who  is  not  a  party  and  not 
interested  in  any  way  cannot  be 
excluded  from  testifying.  Espalla 
v.  Richard,  94  Ala.  159,  10  So. 
Rep.  137. 

Testimony  concerning  a  per- 
sonal transaction  with  the  de- 
ceased and  bearing  comprehen- 
sively and  pertinently  on  the  vital 
issue  in  controversy,  is  inadmis- 
sible under  §  829  of  the  New  York 
Code  of  Civil  Procedure.  Till- 
man  v.  Rayner,  125  N.  Y.  App. 
Div.  309,  109  N.  Y.  Supp.  443. 

In  an  action  to  rescind  a  deed, 
the  grantor  will  not  be  permitted 
to  testify  as  to  transactions  with 
the  deceased  grantee.  Curd  v. 
Bowron,  32  Ky.  Law  Rep.  369,  105 
S.  W.  Rep.  417. 


The  payee  of  a  check,  being  in- 
terested in  the  event,  cannot  testify 
in  regard  to  it  after  the  death  of 
the  maker.  Harney  v.  McCann's 
Estate,  175  111.  App.  250. 

The  beneficiary  under  a  will 
who,  if  the  will  were  defeated, 
would  receive  nothing,  and  who 
takes  the  stand  on  behalf  of  the 
contestants,  will  nevertheless  not 
be  permitted  to  testify  as  to 
communications  with  the  deceased 
for  the  reason  that  he  is  a  party  in- 
terested in  the  event  under  Code, 
§  4604.  In  re  Martin  (Iowa),  142 
N.  W.  Rep.  74. 

Under  §506,  Burns'  Ann.  St. 
1901,  one  who  had  a  claim  for 
care  and  attention  given  to  the  de- 
cedent is  not  a  competent  witness  in 
support  of  such  claim.  Scott  v. 
Smith  (Ind.),  82  N.  E.  Rep.  556. 

In  an  action  by  or  against  an 
administrator,  testimony  by  the 
adverse  party  as  to  conversations 
with  the  deceased  is  objectionable 
under  §5991,  BaUinger's  Ann. 
Codes  &  St.  (Pierce's  Code,  937). 
Moylan  v.  Moylan,  49  Wash.  341, 
95  Pac.  Rep.  271. 

Where  one  party  to  a  contract 
is  dead  the  other  is  incompetent  to 
testify  as  to  it  under  Code  Pub. 
Gen.  Laws,  1904,  Art.  35,  §3. 
Temple  v.  Bradley,  119  Md.  602, 
87  Atl.  Rep.  394. 

A  tenant  cannot  testify  to 
a  verbal  modification  of  a  lease 
with  a  deceased  landlord,  on  the 
ground  that  the  matters  to  be  tes- 
tified to  were  equally  within  the 


188 


ACTIONS   BY   AND   AGAINST 


terest,38  or  in  behalf  of  a  party  succeeding  to  his  title  or  in- 
terest, if  he  or  his  predecessor  hi  interest  is,  at  the  tune  of  the 


knowledge  of  the  decedent.  Goe- 
bel  v.  Look,  153  Mich.  204,  116 
N.  W.  Rep.  1078. 

The  maker  of  a  promissory  note 
cannot  testify  as  to  payments 
thereon  made  to  the  deceased 
payee,  which  payments  were  not 
endorsed  on  the  note.  Jennings  r. 
Roberts,  130  Mo.  App.  493,  109 
S.  W.  Rep.  84. 

A  party  suing  an  executor  to 
recover  property  alleged  to  have 
been  stolen  by  the  decedent  will 
not  be  permitted  to  testify  that 
the  decedent  was  present  at  the 
time  of  the  alleged  theft.  Ten 
Broeck  v.  Jackson,  73  N.  J.  Eq. 
734,  69  Atl.  Rep.  490. 

One  bringing  action  against  an 
estate  for  personal  services  rend- 
ered the  deceased  may  testify  as 
to  such  services.  Gardner  v. 
Young,  163  Wis.  241,  157  N.  W. 
Rep.  787. 

Where  a  decedent  representative 
had  allowed  a  claim  for  services 
rendered  by  himself  for  decedent, 
his  testimony  is  incompetent  on  a 
final  accounting  as  to  conversa- 
tions with  decedent.  In  re  Rikers, 
85  N.  J.  Eq.  122,  94  Atl.  Rep.  622. 

His  wife  however  is  a  competent 
witness.  Id. 

Where  one  of  the  parties  to  a 
contract  is  dead,  the  wife  of  the 
other  party  is  not  incompetent  to 
testify  as  to  the  transaction  be- 
tween her  husband  and  the  de- 
ceased, under  Civ.  Code,  1910, 
§  5858,  IT  4,  §  5859.  Dean  v.  Dean, 
13  Ga.  App.  798,  80  S.  E.  Rep.  25. 


The  wife  of  an  heir  of  a  decedent 
is  incompetent  to  testify  as  to 
transactions  between  the  decedent 
and  claimants  against  his  estate. 
Hyde  v.  Honitor,  175  Mo.  App. 
583, 158  S.  W.  Rep.  83. 

38  Before  this  qualification  was 
expressly  made,  it  was  held  that 
the  fact  that  the  interest  was  in 
favor  of  the  executor  or  adminis- 
trator against  whom  the  witness 
was  called,  and  was  against  the 
success  of  the  party  calling  him,  did 
not  take  the  case  out  of  the  statute. 
Le  Clare  v.  Stewart,  8  Hun,  127. 
A  party  cannot  testify  to  a  con- 
versation between  himself  and  a 
deceased  grantor,  under  whose 
conveyance  the  opposite  party 
claims,  although  the  latter  was  not 
the  immediate  grantee  of  the  de- 
ceased, but  derived  title  through 
one  or  more  mesne  conveyances. 
Pope  v.  Allen,  90  N.  Y.  298. 

Under  Code  1896,  §  1794,  one 
who  has  a  pecuniary  interest  in 
the  result  of  a  suit  by  an  adminis- 
trator is  incompetent  to  testify  as 
to  any  statement  by  or  transaction 
with  the  deceased.  Cobb  v.  Owen, 
150  Ala.  410,  43  So.  Rep.  826. 

Testimony  of  a  wife  to  the  effect 
that  her  deceased  husband  had 
contracted  with  her  to  have  the 
beneficiary  of  his  insurance  policy 
changed  from  his  mother  to  his 
wife  is  incompetent.  Franken  v. 
Supreme  Court,  I.  O.  F.,  152  Mich. 
502,  116  N.  W.  Rep.  188. 

In  a  suit  by  the  guardian  of  an 
insane  woman  against  the  admin- 


EXECUTORS   AND   ADMINISTRATORS 


189 


trial,  39  interested  in  the  event  of  the  action  or  proceeding, 
whether  directly  interested  in  the  cause  of  action,  or  whether 


istrator  of  her  deceased  husband 
the  guardian  will  not  be  permitted 
to  testify,  for  the  reason  that  if 
successful  in  the  suit  he  would  be 
entitled  to  commissions  and  if  un- 
successful he  would  be  liable  for 
costs.  Code  1896,  §  1794.  Hollo- 
way  v.  Wilkerson,  150  Ala.  297,  43 
So.  Rep.  731. 

Parties  who  under  the  statute 
(Kurd's  Rev.  St.  1905,  c.  51,  §  2, 
p.  1034)  are  incompetent  to  testify 
will  not  be  permitted  to  take  the 
stand  to  refute  the  testimony  of 
certain  witnesses  concerning  state- 
ments made  to  them  by  the  de- 
cedent in  the  absence  of  said  par- 
ties. Wickes  v.  Walden,  228  111. 
56,  81  N.  E.  Rep.  798. 

No  party  shall  be  examined  as  a 
witness  hi  regard  to  any  personal 
transaction  or  communication  be- 
tween such  witness  and  the  de- 
cedent hi  an  action  against  the 
executor.  Tebbs  v.  Jarvis,  139 
Iowa,  428, 116  N.  W.  Rep.  708. 

In  an  action  by  a  mortgagee 
against  the  executor  of  the  de- 
ceased mortgagor  the  mortgagee 
will  not  be  permitted  to  testify  as 
to  what  was  the  preliminary  agree- 
ment leading  up  to  the  execution 
of  the  mortgage.  Code,  §  4604. 
Whitley  v.  Johnson,  135  la.  620, 
113  N.  W.  Rep.  550. 

Under  subsection  2  of  §  606  of 
Civ.  Code  Practice,  parties  cannot 
testify  as  to  verbal  statements  of 
and  transactions  with  the  deceased. 
Owsley  v.  Boles,  30  Ky.  Law  Rep. 
1016,  99  S.  W.  Rep.  1157. 


In  an  action  against  the  estate 
of  a  deceased  person  testimony  as 
to  conversations  and  transactions 
between  the  plaintiff  and  the  de- 
cedent is  incompetent.  Moore  v. 
Moore,  30  Ky.  Law.  Rep.  383,  98 
S.  W.  Rep.  1027. 

Under  §  4609,  St.  1898,  evidence, 
of  a  transaction  had  by  the  de- 
fendant personally  with  a  deceased 
person  through  whom  the  plaintiff 
as  trustee  derived  his  title  is  ex- 
cluded. Jackman  v.  Inman,  134 
Wis.  297,  114  N.  W.  Rep.  489. 

A  husband  who  conducts  his 
business  entirely  in  his  wife's 
name  for  the  obvious  purpose  of 
evading  payment  to  his  creditors 
will  not  be  permitted  to  testify 
as  to  a  transaction  between  his  wife 
and  a  deceased  creditor,  the  hus- 
band being  the  alter  ego  of  his  wife. 
In  re  Neufeld,  50  N.  Y.  Misc.  215, 
100  N.  Y.  Supp.  444. 

In  a  suit  by  an  executor  to  fore- 
close a  mortgage,  the  mortgagor 
may  not  testify  as  a  witness  in  re- 
spect to  any  transaction  or  com- 
munication by  him  personally  with 
the  deceased  mortgagee,  where  no 
witness  has  been  examined  hi  be- 
half of  the  opposite  party  concern- 
ing such  transaction  or  communica- 
tion. Hilton  v.  Rahr,  161  Wis.  619, 
Rep.  155  N.  W.  116. 

39Farnsworth  v.  Ebbs,  2  Hun, 
438,  s.  c.,  5  Supm.  Ct.  (T.  &  C.) 
1.  As  the  N.  Y.  statute  now  re- 
fers only  to  examination  at  the 
trial  or  hearing,  it  may  perhaps 
be  claimed  that  such  testimony 


190 


ACTIONS   BY   AND   AGAINST 


merely  liable  to  be  legally  affected  by  the  judgment, — as, 
for  instance,  where  he  stands  in  such  a  position  that  the 
effect  of  a  recovery  in  the  action  may  be  to  diminish  a  fund 
in  which  he  has  an  interest,40  or  make  his  co-defendant  liable 
jointly  with  him,41  or  may  aid  the  party  unsuccessful  in  the 
action  to  bring  and  maintain  an  action  against  the  witness 


may  be  taken  on  deposition,  and 
the  question  of  its  competency  de- 
termined at  the  trial,  according  to 
the  existence  of  interest,  etc.,  at 
the  time  of  trial. 

Code  §  4604,  excludes  testimony 
as  to  any  communication  between 
the  witness  and  a  deceased  person 
at  the  commencement  of  the  ex- 
amination. Tebbs  v.  Jarvis,  139 
Iowa,  428,  116  N.  W.  Rep.  708. 

40  Le  Clare  v.  Stewart,  8  Hun, 
127;  but  the  statute  has  been  held 
not  to  exclude  the  foreign  adminis- 
trator of  the  same  decedent  in  a 
suit  against  the  administrators 
here  appointed,  for  the  former  is 
not  interested.  1  Whart.  Ev.  451, 
§  471,  citing  Stearns  v.  Wright,  51 
N.  H.  606. 

The  husband  of  a  party  to  an 
action  who  acted  as  agent  for  his 
wife  is  competent  to  testify  as  to  a 
transaction  between  himself  and 
the  decedent,  as  he  is  not  considered 
to  be  interested  in  the  event. 
Savercool  v.  Wilsey,  5  N.  Y.  App. 
Div.  562,  39  N.  Y.  Supp.  413. 

On  the  theory  that  a  wife  im- 
mediately upon  the  seizin  of  her 
husband  becomes  entitled  to  an 
inchoate  right  of  dower,  the  wife 
of  the  contestant  of  a  will  cannot 
testify  as  to  transactions  or  con- 
versations with  the  deceased,  the 
devolution  of  whose  real  estate  is 


in  controversy.  Linebarger  v.  Line- 
barger,  143  N.  C.  229,  55  S.  E. 
Rep.  709,  10  Ann.  Cas.  596. 

The  testimony  of  an  officer  of  a 
mutual  benefit  corporation  in  an 
action  brought  by  the  representa- 
tives of  a  deceased  member,  as  to 
a  personal  transaction  with  the  de- 
cedent is  not  incompetent  under 
the  statute.  Raab  v.  National 
Slav6nic  Society,  152  N.  Y.  Supp. 
1033,  90  Misc.  379. 

In  an  action  brought  by  repre- 
sentatives of  a  decedent  against  a 
corporation,  one  who  has  in  good 
faith  extinguished  his  interest  in 
the  corporation  by  a  sale  of  his 
stock  before  being  called  upon  to 
testify  is  a  competent  witness  as 
to  any  matter  occurring  before  de- 
cedent's death.  Isenberg  v.  Hunt- 
ington  M.  &  L.  Co.,  62  Pa.  Super. 
491. 

"Wilcox  v.  Corwin,  117  N.  Y. 
500,  23  N.  E.  Rep.  165. 

The  prohibition  of  the  statute 
is  against  testimony  by  a  party 
to  an  action  in  which  an  executor 
or  administrator  is  also  a  party. 

The  provisions  of  the  statute 
cannot  be  annulled  simply  for  the 
reason  that  the  party  testifying  is 
a  co-defendant  with  the  executor 
or  administrator.  Cardiff  v.  Mar- 
quis, 17  N.  D.  110, 114  N.  W.  Rep. 
1088. 


EXECUTORS   AND   ADMINISTRATORS 


191 


for  indemnity; 42  or,  to  take  another  instance,  where  the 
effect  of  a  recovery  may  be  to  exonerate  the  witness  from 
liability  for  a  tort,  by  giving  the  plaintiff  satisfaction 
from  another  person.43  But  interest  in  the  question  is  not 
enough.  Thus,  where  the  question  is  whether  a  deed  shall 
be  set  aside  as  against  one  heir,  another  heir,  not  a  party, 
is  not  excluded.44  Nor  is  the  mere  fact  that  the  witness  or 
the  deceased  was  the  agent  of  the  party  hi  making  the  very 
contract  sued  on  sufficient  to  disqualify.45  The  test  of  in- 


"Stallings  v.  Hinson,  49  Ala. 
92;  Wooster  v.  Booth,  2  Hun,  426. 
Compare  Cousins  v.  Jackson,  52 
Ala.  262. 

A  child  of  the  testator,  who  is 
not  called  to  testify  against  his 
interest,  in  not  a  competent  wit- 
ness. Hartrick  v.  Hartrick,  272 
111.  613,  112  N.  E.  Rep.  364. 

43  Andrews  v.  Nat.  Bank  of  North 
America  of  N.  Y.,  7  Hun,  20. 

"Hobart  v.  Hobart,  62  N.  Y. 
83;  Hooper  v.  Howell,  52  Geo. 
321. 

Under  Tex.  Rev.  St.  1895,  art. 
2302,  evidence  of  conversations 
and  transactions  between  a  de- 
ceased and  his  heirs,  during  his 
lifetime,  are  inadmissible.  Duncan 
v.  Jouett  (Tex.  Civ.  App.),  Ill  S. 
W.  Rep.  981. 

One  suing  as  the  heir  of  a  grantee 
in  a  deed  cannot  testify  as  to  dec- 
larations of  such  grantee  concern- 
ing the  consideration  for  the  deed. 
Wolf  v.  King,  49  Tex.  Civ.  App. 
41,  107  S.  W.  Rep.  617. 

One  who  claims  title  to  the  prop- 
erty of  a  deceased  under  a  deed 
from  him  is  incompetent  as  a  wit- 
ness hi  support  of  such  deed.  Bur- 
nett v.  Smith,  93  Miss.  566,  47  So. 
117. 


45  Scurry  v.  Cotton  States  Life 
Ins.  Co.,  51  Geo.  624;  Am.  Life 
Ins.  Co.  v.  Schultz,  2  Weekly  Notes 
(Pa.),  665;  Spencer  v.  Trafford,  42 
Md.  17. 

In  Virginia,  the  agent  of  the 
plaintiff,  who  sold  and  delivered 
goods  to  the  testator  of  the  defend- 
ant executor,  will  be  allowed  to 
testify  in  behalf  of  the  plaintiff  as 
to  the  transaction.  Goodell  v. 
Gibbons,  91  Va.  608,  22  S.  E.  Rep. 
504. 

An  agent  cannot  testify  in  an 
action  between  his  principal  and 
the  executor  of  a  deceased  customer 
as  to  conversations  had  with  the 
decedent.  Wood  v.  Kaufman,  135 
Mich.  5,  97  N.  W.  Rep.  47. 

Under  §  400  of  Code  Civ.  Pro. 
an  agent  of  a  party  in  interest  will 
not  be  permitted  to  testify  as  to 
conversations  and  transactions  with 
a  deceased,  in  an  action  by  the  de- 
ceased's administrator.  Clarke  v. 
Home  Fund  Life  Ins.  Co.,  79  S. 
C.  494,  61  S.  E.  Rep.  80. 

The  attorney  for  the  plaintiff  is 
not  disqualified  from  testifying  as 
to  communications  with  the  de- 
ceased but  his  credibility  is  open 
to  attack  by  virtue  of  his  relation 
to  the  case.  Domm  v.  Hollenbeck, 


192 


ACTIONS   BY   AND    AGAINST 


terest  is  that  the  witness  will  either  gain  or  lose  by  the  direct 
legal  operation  of  the  judgment,  or  that  the  record  will  be 


259  111.  382,  102  N.  E.  Rep.  782, 
Ann.  Gas.  1914,  B.  1272. 

Section  7253,  Rev.  Codes  1905, 
does  not  exclude  the  testimony  of 
the  agent  of  a  party  or  person 
whose  testimony  would  be  ex- 
cluded. First  National  Bk.  v. 
Warner,  17  N.  D.  76,  114  N.  W. 
Rep.  1085,  17  Ann.  Cas.  213. 

Under  §  5242,  Rev.  St.  1906,  the 
general  manager  of  a  corporation 
is  not  disqualified  from  testifying 
in  an  action  against  an  adminis- 
tratrix as  to  transactions  by  him 
in  behalf  of  the  corporation  with 
the  deceased.  Cockley  Milling  Co. 
v.  Bunn,  75  Ohio  St.  270,  79  N.  E. 
Rep.  478,  116  Am.  St.  Rep.  741,  9 
Ann.  Cas.  179. 

In  an  action  against  a  corpora- 
tion testimony  concerning  the 
statements  of  a  deceased  officer 
will  be  admitted  if  it  is  shown  that 
another  officer  was  present.  Kin- 
ney  Rodier  Co.  v.  National  Parlor 
Furniture  Co.,  176  111.  App.  282. 

An  agent  will  be  allowed  to  tes- 
tify as  to  transactions  had  with  a 
deceased  buyer.  Shaub  v.  Smith, 
50  Ohio  St.  648,  35  N.  E.  Rep.  503; 
Goodell  v.  Gibbons,  91  Va.  608, 
22  S.  E.  Rep.  504. 

An  agent  of  an  insurance  com- 
pany cannot  testify  for  his  com- 
pany in  an  action  against  the  ad- 
ministrator of  a  deceased  policy- 
holder  concerning  any  agreements 
made  as  to  the  policy.  Insurance 
Co.  of  North  America  v.  Brim,  111 
Ind.  281,  12  N.  E.  Rep.  315. 

Under  §500,  Rev.  St.  1881,  an 


attorney  is  not  disqualified  from 
testifying  as  to  conversations  of 
his  deceased  client  whom  he  repre- 
sented at  the  making  of  a  contract. 
Piper  v.  Fosher,  121  Ind.  407,  23 
N.  E.  Rep.  269. 

In  Illinois  a  witness  may  testify 
as  to  a  payment  made  to  a  deceased 
agent,  as  the  statute  excludes  only 
testimony  concerning  conversa- 
tions and  not  transactions.  Helbig 
v.  Citizens'  Ins.  Co.,  120  111.  App. 
58. 

In  an  action  by  the  executor  of 
a  deceased  employee  of  a  railroad 
against  the  latter  for  the  death  of 
the  employee,  the  foreman  of  the 
railroad  who  gave  the  employee 
orders  may  testify  concerning  those 
orders,  the  foreman  being  neither 
a  party  nor  interested  in  the  event. 
Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Rohlfs,  51  111.  App.  215. 

A  clerk  of  an  insurance  agent 
may  testify  concerning  a  conversa- 
tion between  the  agent  and  a  de- 
ceased policyholder  as  to  a  change 
to  be  made  in  the  policy,  the  clerk 
not  being  a  party  and  not  inter- 
ested. Krause  v.  Equitable  Life 
Assoc.  Soc.,  105  Mich.  329,  63  X. 
W.  Rep.  440. 

Where,  hi  an  action  brought  by 
the  personal  representative  of  a 
decedent,  it  appears  that  the  de- 
fendant's witness  was  his  agent 
and  likewise  interested  in  the  result 
of  the  suit,  the  exclusion  of  his  tes- 
timony is  proper.  Mclntyre  v. 
Jones,  17  Ga.  App.  760,  88  S.  E. 
Rep.  419. 


EXECUTORS   AND   ADMINISTRATORS 


193 


legal  evidence  for  or  against  him  in  some  other  action.46   And 
it  must  be  a  present,  certain,  and  vested  interest,  and  not 


46  Connelly  v.  O'Connor,  117  N. 
Y.  91,  22  N.  E.  Rep.  753. 

The  prohibition  of  the  statute 
(Code,  §  4604)  extends  no  farther 
than  to  forbid  the  examination  of 
a  party  or  person  interested  as  a 
witness  respecting  transactions  or 
communications  between  such  wit- 
ness and  a  person  since  deceased  as 
against  a  person  bearing  to  such 
deceased  some  one  of  the  relation- 
ships specified  in  the  statute,  and 
where  the  relationship  is  not  one 
falling  within  the  specified  classes 
the  witness  will  be  allowed  to  tes- 
tify. Culbertson  v.  Salinger  &  Brig- 
ham  (la.),  117  N.  W.  Rep.  6. 

Under  Kurd's  Rev.  Stat.  1905,  p. 
1034,  c.  51,  §  2,  the  test  of  interest 
that  disqualifies  when  an  heir  is  a 
party  to  the  suit  is  whether  the 
witness  would  immediately  gain 
or  lose  by  the  event  of  the  suit,  or 
whether  the  verdict  could  be  given 
in  evidence,  either  for  or  against 
him,  in  another  suit.  Jones  v.  Ab- 
bott, 235  111.  220,  85  N.  E.  Rep. 
279.  In  a  will  contest  the  contest- 
ant will  not  be  permitted  to  testify 
that  he  loaned  the  testator  money, 
under  Rev.  Civ.  St.  1911,  art.  3690. 
Ross  v.  Kell  (Tex.  Civ.  App.),  159 
S.  W.  Rep.  119. 

The  relatives  of  the  proponent 
of  a  will  are  competent  to  testify 
in  a  contest  under  Mills  Ann.  St., 
§4816.  Burnham  v.  Grant,  24 
Colo.  App.  131,  134  Pac.  Rep.  254. 

One  whose  claim  against  the  es- 
tate of  a  decedent  has  been  paid  is 
competent  to  testify  as  to  such 


claim,  as  he  is  not  interested  in  the 
event  of  a  proceeding  on  a  contested 
accounting  in  which  the  rightful 
payment  of  such  claim  is  disputed. 
But  his  testimony,  unless  corrobo- 
rated by  others,  will  be  insufficient. 
Matter  of  Mulligan,  82  N.  Y.  Misc. 
336,  143  N.  Y.  Supp.  686. 

The  parent  of  one  who  was  killed 
in  an  accident  is  not  disqualified 
from  testifying  against  the  party 
who  was  responsible,  under  Revisal 
1905,  §1631.  Irvin  v.  Southern 
Ry.  Co.,  164  N.  C.  5,  80  S.  E. 
Rep.  78. 

Under  evidence  act  May  23, 1887 
(P.  L.  159,  §  5),  no  person  whose 
interest  shall  be  adverse  to  the 
right  of  a  deceased  party  shall  be 
a  competent  witness  to  any  matter 
occurring  before  the  death  of  such 
party.  Munson  v.  Crookston,  219 
Pa.  419,  68  Atl.  Rep.  962. 

One  who  is  a  party  to  a  contract 
which  is  made  solely  for  the  benefit 
of  others  will  not  be  disqualified 
from  testifying  as  to  conversations 
with  the  decedent  who  made  the 
contract,  on  the  theory  that  the 
witness  is  not  testifying  in  his  own 
favor.  Howard  v.  Hardy,  128  Mo. 
App.  349,  107  S.  W.  Rep.  466. 

Under  Sayles'  Ann.  Civ.  St.  1897, 
Art.  2302,  in  an  action  by  or  against 
executors  neither  party  may  tes- 
tify against  the  other  as  to  any 
communication  with  the  deceased, 
unless  called  by  the  opposite  party. 
Huff  v.  Powell,  48  Tex.  Civ.  App. 
582,  107  S.  W.  Rep.  364. 

Where  an  action  is  dismissed  as 


194 


ACTIONS   BY   AND    AGAINST 


one  that  is  uncertain,  remote,  or  contingent.47    Hence,  in  an 
action  upon  an  alleged  agreement  on  the  part  of  defendant's 


against  one  of  the  parties  defend- 
ant, such  party  will  not  be  disqual- 
ified from  testifying  when  the  case 
is  reached  for  trial,  as  to  transac- 
tions with  the  deceased  under 
§  2303,  R.  S.  1895,  for  the  reason 
that  at  the  time  of  the  trial  he  is 
not  a  party  to  the  suit.  McKeon 
v.  Roan  (Tex.  Civ.  App.),  106  S.  W. 
Rep.  404. 

One  whose  claim  has  been  paid 
by  the  administrator  is  a  competent 
witness,  in  the  proceeding  on  a  con- 
tested accounting,  as  to  his  trans- 
action with  the  deceased.  Matter 
of  McNeany,  5  N.  Y.  App.  Div. 
456,  38  N.  Y.  Supp.  1093. 

In  Ohio  an  exception  has  been 
made  in  actions  which  involve  the 
validity  of  a  deed,  in  which  the 
grantee  of  a  decedent  was  not  dis- 
qualified from  testifying  against 
the  administrator.  Doney  v.  Dun- 
nick's  Adm'r,  8  Ohio  Cir.  Ct.  R. 
163,  4  Oh.  Cir.  Dec.  380. 

In  an  action  against  the  adminis- 
trator of  an  estate,  the  wife  of 
plaintiff  is  a  competent  witness  to 
testify  to  transactions  with  or 
statements  by  the  intestate.  Woo- 
ster  v.  Eagan,  88  N.  J.  L.  687,  97 
Atl.  Rep.  291. 

The  interest  which  will  disqual- 
ify a  witness  from  testifying  as  to 
a  transaction  with  the  deceased 
must  be  direct  and  present.  An 
interest  which  can  be  affected  by 
the  result  of  the  suit  only  in  some 
remote  or  merely  possible  contin- 
gency will  not  disqualify.  A  stock- 
holder of  a  corporation  which  is 


a  creditor  of  one  of  the  parties  is 
competent.  Kyle  v.  Kyle,  175 
Iowa,  734,  157  N.  W.  Rep.  248. 

A  stockholder  of  a  corporation 
is  not  a  competent  witness  to  tes- 
tify against  the  representative  of 
a  deceased  person,  where  the  corpo- 
ration will  gain  or  lose  as  a  result 
of  the  suit.  Scott  v.  O'Connor- 
Cbuch,  271  111.  395,  111  N.  E.  Rep. 
272,  L.  R.  A.  1916,  D.  179. 

A  witness  interested  in  the  ques- 
tion as  to  whether  a  sale  was  made 
to  the  deceased  or  to  himself,  is 
a  competent  witness  to  testify 
against  the  defendant  executors, 
respecting  a  personal  transaction 
with  their  deceased,  where  it  is 
clear  that  any  judgment  in  the  ac- 
tion could  not  affect  the  witness 
by  direct  legal  operation,  nor  the 
record  be  legal  evidence  for  or 
against  him  in  any  other  action. 
West  End  Brewing  Co.  v.  Utica 
Trust  &  Deposit  Co.,  175  App.  Div. 
477,  162  N.  Y.  Supp.  537. 

« Connelly  v.  O'Connor,  117 
N.  Y.  91,  22  N.  E.  Rep.  753.  "It 
is  claimed,  however,  that  Freed- 
man  was  examined  in  his  own  be- 
half, and  had  an  interest  in  the 
event  of  the  action  by  reason  of  his 
position  as  indorser.  But  the  fact 
of  his  indorsement  merely  did  not 
make  him  liable  on  the  note,  and 
we  think  not  even  presumptively 
so.  Until  the  note  was  duly  pre- 
sented and  protested  for  non-pay- 
ment and  due  notice  given,  the 
indorser  was  not  liable  at  all.  At 
the  date  of  the  trial  the  note  was 


EXECUTORS   AND   ADMINISTRATORS 


195 


intestate  to  pay  plaintiff  for  the  care  and  support  of  the  in- 
testate's illegitimate  child,  the  mother  of  the  child,  who  was 
not  a  party  to  the  action,  was  held  competent  to  testify  as 
to  the  contract  with  the  intestate.48  So,  in  an  action  of  eject- 
ment wherein  plaintiff  claimed  as  only  son  and  heir  of  his 
father,  and  the  only  question  at  issue  was  as  to  the  marriage 
of  his  parents  before  his  birth,  it  was  held  that  his  mother 
was  a  competent  witness  to  prove  the  marriage.49 


long  past  due,  and  Freedman 
charged  as  indorser  or  discharged 
by  the  omission  of  protest  and  no- 
tice. He  says  he  received  no  no- 
tice. Presumptively,  therefore, 
none  was  sent.  If  the  plaintiffs 
had  shown  that  his  liability  as  in- 
dorser had  arisen,  or  possibly  even 
that  a  claim  of  protest  and  notice 
in  good  faith  existed,  so  as  to  leave 
the  question  of  liability  open,  it 
might  be  urged  that  he  had  an 
interest  in  proving  payment,  but 
until  something  of  the  kind  ap- 
peared, he  stood  not  at  all  in  the 
attitude  of  one  interested  in  the 
event  of  the  action  and  examined 
in  his  own  behalf."  Neaipass  v. 
Oilman,  104  N.  Y.  506,  510-511, 
10  N.  E.  Rep.  894. 

One  who  is  the  son  of  a  defend- 
ant in  an  action  to  foreclose  a 
mortgage,  and  resides  upon  the 
mortgaged  premises  without  pay- 
ing rent,  has  no  legal  interest  in 
the  land  nor  in  the  event  of  the 
action,  and  will  not  be  disqualified 
from  testifying  against  the  execu- 
tor of  the  deceased  mortgagee  as 
to  transactions  with  the  latter. 
Bennett  v.  Best,  142  N.  C.  168,  55 
S.  E.  Rep.  84. 

In  a  will  contest  to  which  the 
executor  is  a  party,  a  legatee  will 


not  be  prevented  from  testifying 
as  to  the  testator's  mental  capacity. 
Foster  v.  Dickerson,  64  Vt.  233, 
24  Atl.  Rep.  253. 

48  Connelly  v.  O'Connor,  117 
N.  Y.  91,  22  N.  E.  Rep.  753.  The 
payee  of  a  note  is  not  a  successor  to 
the  title  or  interest  of  the  maker. 
Wilcox  v.  Corwin,  117  N.  Y.  500, 
23  N.  E.  Rep.  165.  Neither  a 
mortgagee  nor  his  assignee  derives 
his  title  'from,  through,  or  under 
the  mortgagor.  Holcomb  v.  Camp- 
bell, 118  N.  Y.  46,  22  N.  E.  Rep. 
1107. 

Acts  1904,  p.  1168,  c.  661,  will 
not  be  so  construed  as  to  make  in- 
competent, witnesses  who  prior  to 
its  passage  were  competent. 

Where  a  mother  testifies  as  next 
friend  of  her  children  in  a  contest 
of  her  deceased  husband's  will  she 
has  no  interest  in  the  proceeding 
and  will  not  be  disqualified  from 
testifying  as  to  transactions  with 
him.  Johnson  v.  Johnson,  105 
Md.  81,  65  Atl.  Rep.  918,  121 
Am.  St.  Rep.  570. 

« Eisenlord  ».  Clum,  126  N.  Y. 
552,  27  N.  E.  Rep.  1024.  "Under 
the  rule  of  the  common  law  on  the 
subject  of  interest  it  is  plain  that 
the  mother  in  tliis  case  would 
have  been  a  competent  witness. 


196 


ACTIONS   BY   AND   AGAINST 


To  warrant  the  exclusion  the  disqualification  must  clearly 
appear  and  not  be  a  matter  of  inference.50 

A  release  which  absolutely  extinguishes  the  interest  of  the 
witness  restores  competency,  where  the  disqualification  re- 
sulted from  being  interested,  but  not  where  it  resulted  from 
the  mere  fact  of  being  a  party.51 


She  had  no  interest  in  the  event 
of  the  suit,  as  that  expression  has 
been  denned  by  the  courts,  and  the 
judgment  would  not  have  been  any 
evidence  for  or  against  her  in  any 
action  she  might  bring.  I  think  the 
expression  'interest  in  the  event,' 
as  used  in  our  statute,  was  never 
intended  to  enlarge  the  class  to  be 
excluded  under  it  beyond  that 
which  the  common  law  excluded  in 
using  the  same  language."  Id., 
PECKHAM,  J. 

One  who  falls  within  none  of  the 
classes  of  persons  declared  to  be 
incompetent,  under  §  5269,  Civ. 
Code,  1895,  to  testify  as  to  com- 
munications with  a  decedent,  will 
be  allowed  to  give  testimony. 

The  fact  that  a  daughter  of  the 
witness  may  profit  by  the  witness' 
testimony  will  not  exclude  the 
witness.  Jackson  v.  Gallagher,  128 
Ga.  321,  57  S.  E.  Rep.  750. 

50  Whitman  v.  Foley,  125  N.  Y. 
651,  26  N.  E.  Rep.  725. 

A  witness  who  is  a  brother  and 
an  heir  of  the  decedent,  and  whose 
interest  is  not  adverse,  and  who  is 
not  a  party  to  the  suit,  is  a  com- 
petent witness  under  §  506,  Burns 
Ann.  St.,  1901,  to  testify  as  to 
transactions  with  the  deceased. 
Sallee  v.  Soules,  168  Ind.  624,  81 
N.  E.  Rep.  587. 

Where  the  witness  is  not  a  party 


to  the  suit  nor  interested  in  the 
result,  he  will  not  be  disqualified 
from  testifying.  Morehead  v.  Allen, 
127  Ga.  510,  56  S.  E.  Rep.  745. 

Where  an  administrator  is  only 
an  indifferent  party  to  a  suit,  Code, 
§  4604,  does  not  apply  to  prevent 
the  other  parties  from  testifying  to 
transactions  with  the  deceased. 
City  National  Bk.  v.  Crahan,  135 
Iowa,  230,  112  N.  W.  Rep.  793. 

A  father  who  has  emancipated 
his  infant  daughter  is  not  there- 
after, by  §  23,  ch.  130,  Code,  1899 
(Code,  1906,  §2945),  disqualified, 
in  a  suit  by  her  against  the  estate 
of  a  decedent  for  the  value  of  ser- 
vices rendered  the  latter  in  his 
lifetime,  to  give  evidence  on  her 
behalf  of  a  personal  transaction 
or  communication  between  the 
witness  and  the  decedent.  Weese 
v.  Yokum,  62  W.  Va.  550,  59  S.  E. 
Rep.  514. 

The  competency  of  a  witness  is 
to  be  determined  by  the  court. 
Campbell  v.  Hunt,  60  Pa.  Super. 
Ct.  332. 

81  Genet  v.  Lawyer,  61  Barb.  211. 

One  whose  claim  against  the  es- 
tate of  a  decedent  had  been  paid  is 
competent  to  testify  as  to  such 
claim,  as  he  is  not  interested  in  the 
event  of  a  proceeding  on  a  con- 
tested accounting  in  which  the 
rightful  payment  of  such  claim  is 


EXECUTORS   AND   ADMINISTRATORS 


197 


The  execution  of  a  general  release  by  one  of  two  plaintiffs, 
the  effect  of  which  is  to  vest  the  interest  released  in  his  co- 
plaintiff,  does  not  render  him  a  competent  witness  in  behalf  of 
his  co-plaintiff,  as  to  such  a  transaction  or  communication.52 

16.  Assignor,  or  Source  of  Title  Excluded. 

No  person,  from,  through,  or  under  whom  such  a  party  or 
interested  person  derives  his  interest  or  title,  by  assignment 
or  otherwise,53  can  be  thus  examined,  in  his  own  behalf  or 
interest,  or  in  behalf  of  the  party  succeeding  to  his  title  or 
interest,54  if  the  interest  or  title  thus  derived  is  hi  the  par- 


disputed.  But  his  testimony,  un- 
less corroborated  by  others,  will 
be  insufficient.  Matter  of  Mulli- 
gan, 82  N.  Y.  Misc.  336,  143  N.  Y. 
Supp.  686. 

"O'Brien  v.  Weiler,  140  N.  Y. 
281,  35  N.  E.  Rep.  587. 

53  Even  where  the  statute  does 
not  expressly  exclude  the  trans- 
ferrer  of  the  cause  of  action,  the 
courts  have  sometimes  excluded 
him,  upon  the  equity  of  the  statute. 
Louis  v.  Easton,  50  Ala.  470,  1 
Whart.  Ev.  452,  §  473.  The  rule 
of  exclusion  does  not  apply  in  a 
replevin  suit  against  a  purchaser 
from  the  administrator  at  public 
sale.  Durham  v.  Shannon,  116 
Ind.  403,  9  Am.  St.  Rep.  860,  19 
N.  E.  Rep.  190. 

64  The  owner  of  chattels  trans- 
ferred the  title,  and  became  agent 
for  his  transferee,  and  then  bailed 
them  with  defendants,  without  dis- 
closing his  agency.  Held,  that  in 
his  principal's  action  against  the 
defendants,  he  could  not  testify 
to  a  demand  made  on  one  of  them 
who  had  since  died.  Comvay  v. 
Moulton,  6  Hun,  650.  A  partner 


having  assigned  or  released  to  his 
co-partner  is  within  the  rule.  Lyon 
v.  Snyder,  61  Barb.  172.  A  child 
emancipated  by  his  father  does  not 
derive  title  to  subsequent  earnings 
"from,  through,  or  under"  the 
father,  in  such  sense  that  the  father 
is  incompetent.  Shirley  v.  Ben- 
nett, 6  Lans.  512. 

Persons  from,  through,  or  under 
whom  a  party  derives  his  interest 
or  title  are  precluded  from  giving 
evidence  of  any  transaction  or  com- 
munication with  a  deceased  person 
in  a  cause  of  action,  wherein  the 
opposite  party  derives  his  title  or 
sustains  his  liability  to  the  cause 
of  action  from,  through,  or  under 
such  deceased  person.  (§  4609, 
St.  1898.)  Dreger  v.  Budde,  133 
Wis.  516,  113  N.  W.  Rep.  950. 

Under  §4562,  Rev.  St.,  1899 
(Ann.  St.,  1906,  p.  2520)  where 
one  of  the  parties  to  a  deed  or  con- 
tract in  issue  is  dead,  the  other 
party  to  such  deed  or  contract 
will  not  be  permitted  to  testify  as 
to  the  nature  of  the  deed  or  con- 
tract and  the  purpose  for  which  it 
was  given.  Gibbs  v.  Haughowout, 


198 


ACTIONS   BY   AND   AGAINST 


ticular  claim  affected  by  the  transaction  or  communica- 
tion.55 

16.  What  Persons  are  Protected. 

The  ground  of  the  exclusion  is  the  intervening  incapacity 
of  the  other  party  to  the  personal  transaction  or  communi- 
cation.56 For  this  purpose,  death  is  held  to  be  sufficiently 
established  by  prima  fade  evidence, — for  instance,  the  pro- 


207  Mo.  384,  105  S.  W.  Rep. 
1067. 

68  This  qualification  is  consonant 
to  the  principle  of  the  statute,  and 
seems  supported  by  the  doctrine 
of  Gary  v.  White,  59  N.  Y.  336,  and 
Van  Tuyl  v.  Van  Tuyl,  8  Abb.  Pr. 
N.  S.  5,  s.  c.,  57  Barb.  235.  Contra, 
Lyon  v.  Snyder  (above). 

In  an  action  by  a  grantor  to  set 
aside  a  conveyance  to  a  grantee 
since  deceased,  the  grantor  will 
not  be  permitted  to  testify  as  to 
conversations  with  the  grantee 
concerning  the  conveyance.  Hagan 
v.  McDermott,  134  Wis.  490,  115 
N.  W.  Rep.  138. 

Where  the  grantor  named  in  a 
deed  is  dead,  the  grantee,  in  an 
action  to  prove  his  title,  may  after 
introducing  the  deed  in  evidence 
testify  that  he  bought  the  land 
from  the  decedent  and  that  he  paid 
him  for  it.  (§  400,  Code  Civ.  Pro., 
1902.)  Langston  v.  Cothran,  78 
S.  C.  23,  58  S.  E.  Rep.  956. 

In  an  action  on  contract  against 
the  administrators  of  the  other 
party  thereto  one  who  is  the  real 
party  in  interest  to  the  contract 
although  not  a  party  to  the  suit  is 
not  competent  to  testify  as  to  any 
transactions  between  himself  and 
the  decedent.  Stone  v.  Fry,  191 


Mo.  App.  607,  178  S.  W.  Rep. 
289. 

58  See  paragraph  11,  above. 

An  executor,  unless  shown  to 
have  an  interest  in  the  subject- 
matter  of  the  controversy,  will 
not  be  disqualified  from  testifying 
under  Code,  §606.  Bright  t«. 
Bright,  30  Ky.  Law  Rep.  834,  99 
S.  W.  Rep.  901. 

In  an  action  against  a  widow  as 
executrix  of  her  deceased  husband, 
she  may  testify  fully  to  transac- 
tions between  him  and  the  plain- 
tiff, and  she  does  not  thereby  waive 
her  right  to  object  to  the  plaintiff's 
testifying  to  the  same  transactions. 
O'Connor  v.  Slatter,  48  Wash.  493, 
93  Pac.  Rep.  1078. 

In  an  action  brought  by  an  ad- 
ministrator, the  defendant  is  not 
authorized  to  testify  to  state- 
ments made  by  the  deceased  unless 
called  and  examined  by  the  plain- 
tiff in  regard  thereto.  (Code, 
Art.  35,  §  3.)  Koogle  v.  Cline,  110 
Md.  587,  73  Atl.  Rep.  672,  24 
L.  R.  A.  N.  S.  413. 

Where  a  claim  against  an  estate 
is  based  upon  a  personal  transac- 
tion between  the  decedent  and 
the  claimant,  clear  and  convincing 
proof  is  needed.  In  re  Oilman,  156 
N.  Y.  Supp.  169,  92  Misc.  140. 


EXECUTORS   AND    ADMINISTRATORS 


199 


duction  of  the  letters  under  which  the  representative  acts.57 
The  fact  that  the  action  is  in  the  name  of  the  representative 
for  formal  reasons,  although  the  estate  has  no  interest  as 
such,  does  not  alter  the  case,  if  the  interests  of  other  parties 
are  such  that  the  reasons  for  protection  equally  apply.58 
And,  on  the  other  hand,  the  prohibition  will  apply  for  the 
protection  of  the  estate,  though  the  representative,  being  a 
party  as  such,  be  also  made  a  party  individually; 59  or, 
though  he  be  sued  only  in  his  individual  name,  if  he  might 
have  been  sued  in  his  representative  character,  or  if  the  re- 
covery will  enhance  or  dimmish  the  estate.60  The  words  in- 
dicating the  various  personal  relations  and  modes  of  succes- 
sion protected  by  the  statute,  are  liberally  construed  in 
furtherance  of  the  equity  of  the  rule; 6I  and  it  is  not  essential 


67  Parhan  v.  Moran,  4  Hun,  717. 

58  Hollister  v.  Young,  41  Vt.  156. 

If  the  estate  of  the  deceased  is 
neither  a  party  to  nor  interested  in 
the  controversy,  testimony  as  to 
transactions  with  the  deceased  will 
not  be  excluded.  Hankey  y. 
Downey,  10  Ind.  App.  500,  38 
N.  E.  Rep.  220. 

In  an  action  by  the  indorsee  after 
maturity  against  the  maker  of  a 
note,  the  latter  may  testify  that 
he  paid  the  note  to  the  decedent 
payee,  provided  the  indorsee  is 
not  a  representative  of  the  deced- 
ent. Woodson  v.  Jones,  92  Ga. 
662,  19  S.  E.  Rep.  60. 

89  Dixon  v.  Edward,  48  Geo.  146. 
Nor  does  the  fact  that  the  repre- 
sentative, by  verifying  his  plead- 
ing, has  by  virtue  of  a  statute,  cast 
the  burden  of  proof  on  the  other 
party.  Id. 

An  executor  may  testify  as  to  a 
conversation  had  with  his  testator 
in  which  the  opposing  party  took 


part.     Wakefield  v.  Wakefield,  47 
N.  Y.  Misc.  87,  93  N.  Y.  Supp.  554. 

60  Louis  v.  Easton,  50  Ala.  470; 
Fitzsimmons  v.  Southwick,  38  Vt. 
514.     It  has,  however,  been  held 
that,  in  a  probate  proceeding,  the 
executor  is  not  protected,  because 
it  is  said  that  before  letters  issued, 
he  is  not  a  party  as  such.    Hamil- 
ton v.   Hamilton,   10  R.   I.   538; 
Dietrich's   Estate,    1    Tuck.    129. 
On  the  other  hand,  it  has  been  held 
that  the  protection  in  favor  of  the 
executor  or  administrator  must  be 
extended  by  the  court  to  an  heir, 
etc.,  if  the  object  of  the  action  is 
to  establish  a  liability  of  the  de- 
cedent or  a  benefit  to  his  estate. 
Mountain  v.  Collins,  cited  in  50 
Ala.  472;  but  see  Bragg  v.  Clark, 
50  Ala.  363. 

61  Thus,  a  husband,  claiming  by 
marital    right   of   succession,    has 
been  treated  as  if  he  were  next  of 
kin  to  his  wife.     Dewey  v.  Goode- 
nough,   56  Barb.  54.     The  term 


200  ACTIONS  BY  AND   AGAINST 

that  it  appear  in  which  of  several  classes  protected  by  the 
statute  the  objector  is,  if  his  right  or  liability  must  be  in 
one  or  another.62  But  the  only  derivative  title  regarded  is 
one  held  by  the  deceased  at  the  time  of  the  transaction,  and 
subsequently  devolved  upon  the  objecting  party.63 

17.  Insanity. 

For  convenience  of  presenting  the  whole  statute  in  one 
view,  its  application,  where  the  incapacity  is  mental,  should 
be  here  considered.  A  question  may  arise  as  to  what  degree 
of  insanity  will  bring  the  case  within  the  statute.  At  com- 
mon law,  the  insane  are  not  absolutely  disqualified  to  testify. 
An  insane  person  may  be  examined  as  a  witness  hi  a  lucid 
interval,  and  may  then  testify  even  to  what  took  place  when 
he  was  insane;  and  even  while  under  delusion,  may  be  ex- 
amined on  the  ground  of  necessity,  especially  for  his  own 
protection,  and  for  the  redress  of  an  injury  to  himself.  If 
the  person  is  insane  within  the  meaning  of  the  language  of 
the  rules  of  evidence  as  to  witnesses,  testimony  of  the  in- 
terested witness  should  not  be  admitted  under  the  statute.64 

"heir"    extends    to   heirs   of    de-  a  third  person,  obtained  for  him 

ceased  heirs  claiming  by  represen-  by  his  debtor,  is  not  an  assignee  of 

tation.    Merrill  v.  Atkins,  59  111.  19.  the  debtor  within  the  rule.    Barney 

"Survivor"   protects   a   surviving  v.  Equitable  Life  Assur.  Soc.,  59 

partner.    Green  v.  Edick,  56  N.  Y.  N.  Y.  587.    If  defendant  in  trespass 

613;     and     "assignees"     includes  justifies  as  having  entered  as  the 

grantees    of    land.      Mattoon    v.  agent  of  the  true  owners,  who  claim 

Young,  45  N.  Y.  696;  and  donees  under   a   deceased   person,   plain- 

of  personalty.     Howell  v.  Taylor,  tiff's  grantor  cannot  testify  against 

11  Hun,  214.    A  bank  making  a  defendant   to    conversations   with 

loan    on   stock   borrowed    by   an  the  deceased.    Wheelock  v.  Cuyler, 

officer  and   pledged  for  his  own  4  Hun,  414. 

benefit,    under    a    representation          82  See    Mosner    v.    Raulain,    66 

that  the  loan  was  for  a  third  per-  Barb.  213. 
son, — Held,  an  assignee  of  its  of-          63  Gary  v.  White,  59  N.  Y.  336. 
ficer  within  the  rule.    Andrews  v.         64  For  these  rules  see  People  ex 

Nat.  Bank  of  N.  Am.,  7  Hun,  20.  rel.  Norton  v.  N.   Y.  Hospital,  3 

But  a  creditor,  taking  a  collateral  Abb.  New  Cases,  229,  note, 
security   by  an   assignment   from          A  person  who  is  hi  no  respect  in- 


EXECUTORS   AND   ADMINISTRATORS 


201 


And  even  if  not,  the  existence  of  an  inquisition  or  the  ap- 
pointment of  a  guardian  ad  litem  in  the  action,  on  the  ground 
of  insanity,  is  prima  facie,  though  only  prima  facie,  evidence 
of  incapacity  to  testify.65 


18.  Objecting  to  the  Testimony. 

The  interested  witness,  when  offered,  should  not  be  ex- 
cluded merely  because  he  is  called  against  an  executor  or 
administrator,  etc.,  unless  it  is  clear  that  if  sworn  he  could 
not  testify  to  anything;  until  that  appears,  it  is  error  to 
exclude  him  66  under  such  a  statute  as  that  of  New  York, 
where,  strictly  speaking,  the  incompetency  is  not  that  of  the 
witness,  but  of  his  testimony  to  particular  facts.67  Hence  a 
general  objection  is  not  enough.68 


terested  in  the  subject-matter  in 
controversy  will  not  be  disqualified 
under  §  1631,  Revisal,  1905,  which 
prohibits  persons  interested  from 
testifying  in  suits  against  the  rep- 
resentative of  an  insane  person  as 
to  communications  with  the  latter. 
Lemly  v.  Ellis,  143  N.  C.  200,  55 
S.  E.  Rep.  629. 

65  Id.;  Little  v.  Little,  13  Gray, 
264. 

6«  Card  v.  Card,  39  N.  Y.  317; 
and  see  Martin  v.  Jones,  59  Mo. 
187;  Leaptrol  v.  Robertson,  37 
Geo.  586. 

67  But  where  the  statute  makes  a 
general  exclusion  of  the  opponent 
of  an  executor  or  administrator, 
with  specified  exceptions,  an  offer 
of  the  testimony  should  show  that 
it  is  within  the  exception.  White 
v.  Brown,  5  Reporter,  171;  Hanna 
».  McVay,  77  Perm.  St.  27,  31; 
and  see  Stewart  v.  Kirk,  69  111. 
512. 


«8  Lewin  v.  Russell,  42  N.  Y.  251. 
Compare  Somerville  v.  Crook,  9 
Hun,  668.  An  objection  in  sub- 
stance that  the  question  calls  for 
testimony  relating  to  personal 
transactions  with  the  deceased  by 
an  interested  witness  is  sufficient, 
and  it  is  not  necessary  to  refer  to 
the  section  of  the  Code  or  other 
authority  by  which  the  objection 
could  be  sustained.  Sanford  v. 
Ellithorp,  95  N.  Y.  48,  52. 

An  objection  to  evidence  on  the 
ground  that  it  is  "immaterial, 
irrelevant,  incompetent,  and  not 
within  the  issues"  is  not  sufficient 
to  exclude  testimony  concerning  a 
transaction  with  a  decedent.  The 
objection  must  set  forth  clearly 
that  the  evidence  contravenes  the 
terms  of  the  statute  which  excludes 
testimony  as  to  such  transactions. 
(Code  Civ.  Pro.,  §829.)  Hamlin 
f.  Hamlin,  117  N.  Y.  App.  Div. 
493,  102  N.  Y.  Supp.  571. 


202  ACTIONS   BY   AND    AGAINST 

19.  Preliminary  Question  of  Competency. 

Whenever  it  appears  that  a  witness  who  is  within  the  stat- 
ute is  about  to  testify  to  an  interview  at  which  the  deceased 
may  have  been  present,  the  question  whether  the  examina- 
tion proposed  relates  to  a  personal  transaction  or  communica- 
tion between  them,  is,  hi  strictness,  one  of  preliminary  proof, 
addressed  to  the  judge,  for  the  purpose  of  determining  which, 
the  witness  may  testify  either  negatively  or  affirmatively 
as  to  whether  the  deceased  was  present,  and  if  so,  whether 
anything  passed  between  him  and  the  deceased,  and  for 
this  purpose  may  be  asked  such  questions  as  are  necessary 
to  ascertain  whether  he  merely  overheard  the  conversation, 
or  whether  he  was  privy  to  it; 69  and  the  objecting  party  may 
be  allowed  to  interpose  with  evidence  to  the  contrary,  to 
enable  the  judge  to  determine  whether  the  witness  could 
testify  to  what  passed  at  the  interview.  But  in  ordinary 
practice,  the  examination  is  allowed  to  proceed  as  evidence 
for  the  jury,  until  it  appears  that  the  witness  is  stating  a 
personal  transaction  or  communication  between  him  and 
the  deceased;  whereupon  all  the  testimony  vitiated  by  this 
fact  will  be  struck  out,  if  a  proper  and  timely  objection  is 
made.  The  principle  is  the  same  under  any  statute  which 
treats  the  witness  as  competent  generally,  but  incompetent 
as  to  particular  facts. 

20.  Moving  to   Strike   out   Incompetent   Part  of  Testi- 
mony. 

If  a  witness  is  inquired  of  generally  as  to  a  transaction,  by 
a  question  not  indicating  that  it  was  a  personal  transaction 
or  communication  with  the  deceased,  he  may  properly  be 
allowed  to  answer,  reserving  to  the  objecting  party  the  right 

69  Otherwise  any  testimony  might  was  not  designed  to  exclude  the 

be  objected  to  on  the  ground  that  testimony  of  a  party,  to  an  occur- 

if  the  deceased  were  alive  he  might  rence  at  which  the  deceased  need 

contradict   it.     Isenhour  v.   Isen-  not  have  been  present.     Franklin 

hour,   64   N.   C.   640;   Brower  v.  v.  Pinkney,  18  Abb.  Pr.  186,  s.  c., 

Hughes,    Id.    642.      The    statute  2  Robt.  429. 


EXECUTORS   AND   ADMINISTRATORS  203 

to  move  to  strike  out,70  and,  if  the  testimony  proves  incom- 
petent, the  motion  to  strike  out  must  be  made  at  or  before 
the  close  of  the  direct  examination.  Cross-examining  the 
witness  at  large  waives  the  motion  to  strike  out.71  If,  how- 
ever, the  testimony  does  not  show  a  personal  transaction  or 
communication — for  example,  if  it  simply  states  that  the 
witness  had  paid  what  was  due  to  the  deceased — it  is  not  to 
be  struck  out,  unless  on  cross-examination  the  objector 
elicits  the  facts  showing  its  incompetency;  then  it  must  be 
stricken  out;  and  the  circumstance  that  the  cross-examina- 
tion had  not  been  confined  to  this  point  does  not  preclude  the 
objector  from  moving  to  strike  out  all  the  incompetent  testi- 
mony.72 

21.  Proof  of  an  Interview. 

Under  the  New  York  statute,  and  others  which  simply 
exclude  all  examination  in  regard  to  any  personal  transaction 
or  communication,  if  the  mere  fact  that  a  conversation  was 
had  between  the  witness  and  the  deceased  be  the  material 
fact,  it  may  be  error  to  allow  the  witness  to  state  even  that; 
but  ordinarily,  where  the  material  fact  is  the  substance  of 
the  interview  itself,  it  is  not  error  to  allow  the  examination 
to  proceed  so  far  as  to  state  that  an  interview  was  nad,  with- 
out proving  what  was  said  or  done.73  The  ordinary  test  is, 
does  the  testimony  tend  to  prove  what  the  transaction  was 
which  was  had  personally  by  him  with  the  deceased.74  The 
exclusion  is  not,  however,  merely  of  testimony  to  prove  what 
took  place.  It  is  equally  incompetent  to  disprove  all  inter- 
course as  to  prove  a  particular  transaction.  Testifying  that 

70  Kerr  v.  McGuire,  28  N.  Y.  446,      person  since  deceased  is  waived  if 
452.  the  objecting  party  shows  on  cross- 
Compare  Howell  v.  Van  Siclen,  6      examination  that  such  a  communi- 

Hun,  115,  120.  cation    or    transaction    occurred. 

71  King  ».  Haney,  46  Cal.  560,      Poole  v.  Poole,  96  Kan.  84,   150 
s.  c.,  13  Am.  Rep.  217.  Pac.  Rep.  592. 

The  incompetency  of  a  witness          72  Kerr  v.  McGuire  (above), 
to  testify  concerning  communica-         7S  Hier  v.  Grant,  47  N.  Y.  278. 
tions  or  transactions  had  with  a         74  Strong  v.  Dean,  55  Barb.  337. 


204  ACTIONS   BY   AND    AGAINST 

there  never  was  an  interview  is  equally  testifying  "in  regard 
to"  the  supposed  communications,  as  is  testifying  to  what 
took  place  at  an  alleged  interview.75  This  may  seem  incon- 
sistent with  what  has  just  been  said  about  testifying  to  the 
fact  of  an  interview,  when  only  the  conversation  is  material, 
and  about  testifying  that  the  deceased  was  not  present  at 
an  act,  or  that  a  communication  when  he  was  present  was  not 
personal,  between  him  and  the  witness;  but  the  distinction, 
though  refined,  is  clear.  If  what  passed  at  the  interview  is 
the  material  fact,  a  witness  who  testifies  only  that  an  inter- 
view was  had,  but  does  not  say  what  passed,  is  not  con- 
sidered as  having  testified  in  regard  to  the  alleged  personal 
transaction  or  communication.  But  if  he  is  allowed  to  testify 
that  no  interview  ever  took  place,  he  does  negative  the  sup- 
posed personal  transaction  or  communication.  Proving  an 
interview  merely,  does  not  prove  personal  communication; 
but  disproving  all  interview  does  disprove  personal  communi- 
cation. Hence  the  rule  that  the  witness  cannot  testify,  even 
negatively,  as  to  interviews. 

22.  What  is  a  Personal  Transaction  or  Communication. 

The  interview,  to  be  excluded,  must  have  been  a  personal 
one.  An  interview  solely  with  an  agent  since  deceased,  is 

»•  Clarke  v.  Smith,  46  Barb.  30;  Under  Civ.  Code,  1895,  §  5269, 
Dyer  v.  Dyer,  48  Id.  190;  Stanley  which  provided  that  "where  any 
v.  Whitney,  47  Id.  586.  Thus  the  suit  is  instituted  or  defended  by 
witness  cannot  testify  that  he  never  the  personal  representative  of  a 
paid  money  to  the  deceased,  or  deceased  person,  the  opposite  party 
that  the  deceased  never  paid  money  shall  not  be  admitted  to  testify  in 
to  him.  The  rule  excludes  testi-  his  own  favor  against  the  deceased 
mony  that  an  alleged  personal  person,  as  to  transactions  or  corn- 
transaction  or  communication  was  munications  with  such  deceased 
never  had.  Howell  v.  Van  Siclen,  person,"  the  living  party  will  be  for- 
6  Hun,  115;  Barrett  v.  Carter,  3  bidden  from  testifying  as  to  the 
Lans.  68;  or  that  witness  did  not  non-existence  of  the  transactions 
see,  or  did  not  have  a  transaction  or  communications.  Webb  v.  Sim- 
with,  the  deceased.  Mulqueen  v.  mons,  3  Ga.  App.  639,  60  S.  E. 
Duffy,  6  Hun,  299.  Rep.  334. 


EXECUTORS   AND   ADMINISTRATORS 


205 


unaffected  by  the  statute.76  The  words  "transactions  or 
communications  "  as  used  in  the  statute  include  every  method 
by  which  one  person  can  derive  any  impression  or  informa- 
tion from  the  conduct,  condition  or  language  of  another77 


76  Hildebrant  v.  Crawford,  65 
N.  Y.  107,  affi'g  6  Lans.  502;  Pratt 
v.  Elkins,  80  N.  Y.  198;  Am.  Life 
Ins.  Co.  ».  Shultz,  2  Weekly  Notes 
(Pa.),  665;  Cheneys.  Pierce,  38  Vt. 
515,  528.  But  under  statutes 
which  exclude  the  surviving  party 
to  a  contract,  the  death  of  a  con- 
tracting agent  has  been  thought 
to  exclude  the  surviving  party  who 
contracted  with  him.  1  Whart. 
Ev.  451,  §469,  citing  First  Nat. 
Bk.  v.  Wood,  26  Wis.  500.  Where 
the  action  was  by  A.  to  reform  his 
deed  to  B.  and  B.'s  to  C.,  Held, 
that  A.  might  testify  to  what  oc- 
curred between  him  and  B.,  al- 
though C.  was  dead.  Payne  v. 
Elyea,  50  Geo.  395. 

Where  a  contract  was  made  with 
an  agent,  and  the  agent  is  dead,  the 
other  party  to  the  contract  cannot 
testify  as  to  what  was  said  by  the 
agent  in  making  the  contract. 
Holcomb-Lobb  Co.  v.  Kaufman, 
96  S.  W.  Rep.  813,  29  Ky.  L.  1006. 

The  death  of  a  selling  agent 
makes  inadmissible  evidence  by 
one  who  purchased  from  him  that 
the  agent  made  fraudulent  repre- 
sentations in  effecting  the  sale. 
(§  10,212,  Comp.  Laws,  1897.) 
Kessler  v.  Zacharias,  145  Mich. 
698,  108  N.  W.  Rep.  1012. 

One  who  contracted  with  a  cor- 
poration through  its  agent  is  not 
competent  to  testify  as  to  such 
transaction  after  the  death  of  the 


agent.  Baldwin  Co.  v.  R.  S.  How- 
ard Co.,  233  Fed.  Rep.  439. 

77  Holcomb  v.  Holcomb,  95  N.  Y. 
316. 

West  Virginia  Code,  1906,  §  3945, 
forbidding  testimony  as  to  a  per- 
sonal transaction  with  a  decedent 
must  be  given  a  broad  and  lib- 
eral construction  and  the  words 
"personal  transaction"  should  in- 
clude all  work  or  labor  performed 
or  acts  done  for  the  deceased 
whether  in  his  presence  or  not. 
McBride  v.  Kirkpatrick,  207  Fed. 
Rep.  893. 

In  Alabama  a  witness  will  not 
be  permitted  to  testify  that  in 
his  opinion  the  signature  to  a 
document  is  that  of  a  deceased 
person,  on  the  theory  that  proof 
of  the  signature  would  be  a  method 
of  proving  the  fact  that  the  de- 
cedent actually  signed  his  name  to 
the  paper.  Ware  v.  Burch,  148 
Ala.  529,  42  So.  Rep.  562,  12  Ann. 
Cas.  669. 

The  test  in  ascertaining  what  is 
a  "transaction  with"  the  de- 
ceased about  which  the  other  party 
to  it  cannot  testify  is  to  inquire 
whether,  in  case  the  witness  testify 
falsely,  the  deceased,  if  living,  could 
contradict  it  of  his  own  knowledge. 
(Citing  Smith  v.  Burnet,  35  N.  J. 
Eq.  314;  Woolverton  v.  Van  Scykel 
57  N.  J.  Law,  393, 31  Atl.  Rep.  603; 
Provost  v.  Robinson,  58  N.  J.  Law, 
222,  33  Atl.  Rep.  204;  Dickerson 


206 


ACTIONS   BY   AND   AGAINST 


and  embrace  every  variety  of  affairs  which  can  form  the 
subject  of  negotiations,  interviews  or  action  between  two 
persons.78  Although,  to  come  within  the  prohibition,  the 
transaction  or  communication  must  have  been  a  personal 
one,  it  need  not  have  been  private  or  confined  to  the  witness 


v.  Payne,  66  N.  J.  Law,  35,  48 
All.  Rep.  528.)  Van  Wagenen  v. 
Bonnot,  74  N.  J.  Eq.  843,  70  Atl. 
Rep.  143,  18  L.  R.  A.  N.  S. 
400. 

Since  the  amendment  of  July  1, 
1899,  to  Kurd's  Stat.  1903,  ch.  51, 
§  4,  p.  935,  the  restriction  extends 
only  to  conversations  with  a  de- 
cedent, the  statute  no  longer  re- 
ferring to  "transactions."  Helbig 
r.  Citizens'  Ins.  Co.,  120  111.  App. 
58. 

A  conversation  between  the 
uncle  and  aunt,  since  deceased,  of 
the  witness  but  in  which  he  took 
no  part,  but  which  conversation  was 
obviously  for  the  purpose  of  con- 
veying information  to  the  witness 
is  a  communication  with  a  dece- 
dent. Tebbs  v.  Jaryis,  139  Iowa, 
428,  116  N.  W.  Rep!  708. 

"Heyne  v.  Doerfler,  124  N.  Y. 
505,  26  N.  E.  Rep.  1044.  "It  has 
been  held  with  general  uniformity 
that  the  section  prohibits  not  only 
direct  testimony  of  the  survivor 
that  a  personal  transaction  did  or 
did  not  take  place,  and  what  did 
or  did  not  occur  between  the  par- 
ties, but  also  every  attempt  by  in- 
direction to  prove  the  same  thing, 
as  by  negativing  the  doing  of  a 
particular  thing  by  any  other  per- 
son than  the  deceased,  or  by  dis- 
connecting a  particular  fact  from 
its  surroundings  and  permitting  the 


survivor  to  testify  to  what  on  its 
face  may  seem  an  independent  fact, 
when  in  truth  it  had  its  origin  in 
or  directly  resulted  from  a  per- 
sonal transaction.  It  is  too  broad 
a  statement  that  where  the  ulti- 
mate fact  cannot  be  proved  under 
this  section  by  a  witness,  he  can- 
not testify  to  any  of  a  series  of 
facts  from  which  the  ultimate 
fact  may  be  inferred;  but  if  there 
is  introduced  into  this  statement 
the  qualification  that  he  cannot 
testify  as  to  any  of  the  particular 
facts,  which  originated  in  a  per- 
sonal transaction  with  the  de- 
ceased, or  which  proceeded  from 
such  transaction  as  a  cause,  the 
statement  so  qualified  may  be 
substantially  correct."  Clift  v. 
Moses,  112  N.  Y.  426, 435,  20  N.  E. 
Rep.  392. 

The  testimony  of  a  witness  as 
to  the  handwriting  or  the  contents 
of  a  deed  of  a  deceased  grantor 
does  not  involve  a  personal  trans- 
action with  the  deceased  under 
§829,  Code  Civ.  Pro.  Simmons 
v.  Havens,  101  N.  Y.  427.  5  N.  E. 
Rep.  73. 

Where  the  party  living  kept  an 
account  book  he  will  be  permitted 
to  testify  in  his  own  favor  so  far 
as  to  prove  in  whose  handwriting 
his  charges  are  and  when  made. 
(Sess.  Acts,  1887,  p.  287.)  Jesse 
v.  Davis,  34  Mo.  App.  351. 


EXECUTORS   AND   ADMINISTRATORS 


207 


and  deceased.79  The  rule  excludes  not  only  testimony  of 
transactions  directly  between  the  witness  and  the  deceased 
and  communications  made  by  the  latter  to  the  former,  but 
of  any  transaction  between  the  deceased  and  others,  hi  any 
portion  of  which  the  witness  participated,  or  any  conversa- 
tion in  his  hearing,  although  not  with  or  addressed  to  him.80 


79  Holcomb  v.  Holcomb,  95  N.  Y. 
316;  Heyne  v.  Doerfler,  124  N.  Y. 
506,  26  N.  E.  Rep.  1044;  Matter  of 
Will  of  Dunham,  121  N.  Y.  575, 
577,  24  N.  E.  Rep.  932. 

80  In  re  Will  of  Eysaman,   113 
N.  Y.  62,  20  N.  E.  Rep.  613. 

An  interested  witness  may  testify 
to  communications  between  others 
and  the  deceased,  but  not  between 
the  witness  and  the  deceased. 
Sarchfield  v.  Hayes  (la.),  112  N.  W. 
Rep.  1100. 

One  who  is  a  party  to  an  action 
may  not  testify  that  he  heard  a 
conversation  between  the  decedent 
and  a  person  who  is  interested  in 
the  event  of  the  action,  as  that 
would  be  the  indirect  testimony  of 
an  interested  witness  as  to  a  com- 
munication with  the  deceased. 
(§  1631,  Revisal,  1905.)  Witty  v. 
Barham,  147  N.  C.  479,  61  S.  E. 
Rep.  372. 

Under  §  1631  of  the  Revisal,  the 
widow  of  a  deceas'ed  grantee  of  a 
tract  of  land  will  be  permitted  to 
testify  that  she  saw  the  decedent 
place  the  deed  in  his  safe  deposit 
box,  and  that  she  saw  the  deed  in 
said  box,  these  things  not  being 
communications  or  transactions 
with  the  deceased.  Carroll  v. 
Smith,  163  N.  C.  204,  79  S.  E.  Rep. 
497. 

One  having  a  direct  legal  interest 


hi  the  event  of  a  suit,  such  as  the 
principal  beneficiary  under  a  will 
which  is  being  contested,  may 
testify  to  a  conversation  between 
the  decedent  and  a  third  party. 
(§  329,  Code  Civ.  Pro.)  Matter  of 
Powers,  79  Neb.  680,  113  N.  W. 
Rep.  198. 

Section  329,  Code  Civ.  Pro.,  does 
not  prohibit  the  grantees  of  land, 
which  the  grantor  has  transferred 
to  his  wife  by  an  unrecorded  deed, 
from  testifying  after  the  death  of 
the  wife  hi  regard  to  their  owner- 
ship and  open  occupation  of  the 
land.  Kime  v.  Krenek,  94  Neb. 
395,  143  N.  W.  Rep.  473. 

Section  829,  Code  Civ.  Pro.,  not 
only  forbids  direct  testimony  by  a 
survivor  that  a  personal  transac- 
tion did  or  did  not  take  place,  and 
what  did  or  did  not  occur  between 
the  parties,  but  also  every  attempt 
by  indirection  to  prove  the  same 
thing.  Little  v.  Johnson,  117  N.  Y. 
App.  Div.  500,  102  N.  Y.  Supp. 
754. 

The  donee  of  a  gift  causa  mortis 
cannot  testify  that  the  gift  was  re- 
ceived through  a  third  person  as 
that  would  be  indirect  testimony 
as  to  a  transaction  with  a  decedent. 
Davis  v.  Davis,  104  N.  Y.  Supp. 
824. 

Under  Revisal,  1905,  §  1631,  a 
party  may  not  testify  to  a  conver- 


208 


ACTIONS   BY   AND   AGAINST 


23.  Indirect  Evidence. 

The  prohibition  is  not  to  be  evaded  by  questions  of  a 
general  form,  such  as  whether  the  witness  was  in  the  habit 
of  borrowing  from  the  deceased,  where  such  habit  might 
form  a  ground  of  presumption  as  to  what  passed  at  a  sup- 
posed interview; 81  nor  is  it  disregarded  because  testimony 
to  facts  necessarily  or  presumptively  importing  personal  com- 
munications does  not  specify  any  particular  interview. 
Thus  a  physician  or  attorney  is  incompetent  to  prove  his 
own  services  as  such  to  the  deceased,  as  against  the  repre- 
sentative.82 But  the  rule  does  not  preclude  the  survivor 


sation  which  he  heard  between  an 
interested  person  and  the  decedent, 
as  that  would  be  the  indirect  testi- 
mony of  an  interested  witness  as 
to  a  transaction  or  communication 
with  the  deceased.  Witty  v. 
Barham,  147  N.  C.  479,  61  S.  E. 
Rep.  372. 

81  Alexander  v.  Dutcher,  7  Hun, 
439.  But  compare  Kerr  v.  Mc- 
Guire,  28  N.  Y.  452. 

"Ross  v.  Ross,  6  Hun,  182; 
Somerville  v.  Crook,  9  Hun,  664. 
A  party  is  competent  against  an 
administrator  to  identify  his  shop 
books  offered  in  evidence.  Strick- 
land v.  Wynn,  51  Geo.  600;  Leggett 
v.  Glover,  71  N.  C.  211;  Kelton  v. 
Hill,  58  Me.  115.  If  the  books 
can  be  deemed  admissible  as  at 
common  law,  notwithstanding  the 
death  of  the  other  party  to  the 
transactions,  they  should  be  intro- 
duced only  upon  the  common-law 
proof  of  accuracy,  etc.  Knight  v. 
Cunnington,  6  Hun,  100,  105.  It 
has  even  been  said  that  a  witness 
who  cannot  prove  a  personal  tran- 
saction, is  equally  incompetent  to 
prove  any  state  of  facts  from  which 


such  transaction  might  be  pre- 
sumed,— for  instance,  that  to  raise 
a  presumption  that  he  had  made 
payments  to  the  deceased,  he  could 
not  testify  that  the  deceased  had 
no  other  sources  of  income  than 
such  payments.  Jaques  v.  Elmore, 
7  Hun,  675. 

In  an  action  against  an  adminis- 
trator for  services  in  nursing,  car- 
ing for,  and  boarding  the  decedent, 
the  plaintiff  is  an  incompetent 
witness  to  prove  the  fact  of  their 
performance,  unless  the  circum- 
stances are  shown  to  have  been 
such  that  acquiescence  by  the  de- 
cedent is  not  inferable  therefrom. 
(§  322,  Civil  Code  [Gen.  St.,  1901, 
§  4770].)  Heery  v.  Reed,  80  Kan. 
380,  102  Pac.  Rep.  846. 

Medical  attendance  involves  a 
transaction  as  well  as  a  communica- 
tion between  the  physician  and  the 
patient.  Upon  the  death  of  the 
patient  testimony  from  the  physi- 
cian as  to  the  facts  of  that  attend- 
ance in  an  action  brought  by  him 
to  recover  for  his  services  is  inad- 
missible under  §829  of  the  New 
York  Code  of  Civ.  Pro.  Kennedy 


EXECUTORS   AND   ADMINISTRATORS 


209 


from  testifying  to  extraneous  facts  or  circumstances,  which 
tend  to  show  that  a  witness  who  has  testified  affirmatively 
to  such  a  transaction  or  communication  has  testified  falsely, 
or  that  it  is  impossible  that  his  statement  can  be  true,  as, 
for  instance,  that  the  survivor  was  at  the  time  absent  from 
the  country  where  the  transaction  is  stated  to  have  occurred; 
and,  so  long  as  the  survivor  refrains  from  testifying  as  to  any- 
thing that  passed,  or  did  not  pass,  personally  between  him- 
self and  the  deceased,  it  is  not  a  valid  objection  to  his  testi- 
mony that  the  facts  which  he  states  bear  upon  the  issue, 
whether  or  not  the  personal  transaction  in  question  took 
place,  or  upon  the  truth  of  the  testimony  by  which  such 
transaction  is  sought  to  be  proved  against  him.83 

The  exclusion  of  the  transaction  or  communication  ex- 
cludes all  the  incidents  of  it,84  so  far  as  they  are  connected 
with  what  affected  the  witness  and  the  deceased  together. 


v.  Mulligan,  173  App.  Div.  859, 
160  N.  Y.  Supp.  105. 

83  Pinney  v.  Orth,  88  N.  Y.  447, 
451.  "It  is  difficult  to  lay  down 
any  general  rule  which  shall  cover 
all  possible  transactions,  but  it  is 
safe  to  say  when  a  party  gives  ma- 
terial evidence  as  to  extraneous 
facts,  which  may  or  may  not  in- 
volve the  negation  or  affirmation 
of  the  existence  of  a  personal  tran- 
saction or  communication  with  a 
deceased  person,  that  the  adverse 
party  although  precluded  from 
directly  proving  the  existence  of 
such  communication  or  transac- 
tion, may  give  evidence  of  ex- 
traneous facts  tending  to  controvert 
his  adversary's  proof,  although 
those  facts  may  also  incidentally 
involve  the  negation  or  affirmation 
of  such  personal  communications 
or  transactions."  Lewis  v.  Merritt, 
98  N.  Y.  206,  210. 


Evidence  of  the  surviving  party 
is  never  received  as  to  matters 
about  which  the  deceased  could 
have  testified  when  his  representa- 
tive being  a  party  to  the  suit  does 
not  elect  to  testify,  unless  it  appears 
from  evidence  other  than  that  of 
the  party  himself,  that  injustice 
will  be  done  by  its  rejection. 
Howie  v.  Legro  (N.  H.),  99  Atl. 
Rep.  650. 

84  The  witness  cannot  testify 
even  to  the  fact  that  he  carried  an 
inkstand  with  him  when  he  had  a 
personal  interview  with  deceased. 
Dubois  v.  Baker,  30  N.  Y.  355, 
affi'g  40  Barb.  556.  The  fact  that 
he  saw  an  instrument  in  the  posses- 
sion of  the  assignee  of  the  deceased, 
was  held  not  incompetent,  in 
Smith  v.  Sergent,  2  Hun,  107.  So 
of  his  testimony  that  a  document 
produced  was  a  copy  of  a  paper  he 
obtained  from  the  deceased.  Moul- 


210 


ACTIONS   BY   AND   AGAINST 


24.  Effect  of  Objecting  Party  Testifying,  etc. 

Where  the  party  for  whose  protection  the  statute  declares 
the  testimony  incompetent,  is  examined  in  his  own  behalf, 
as  to  the  transaction  or  communication  in  question,  or  where 
the  testimony  of  the  deceased  or  lunatic  as  to  it  is  given  in 
evidence,85  by  the  party  adverse  to  the  one  calling  the  wit- 
ness,86 the  prohibition  does  not  apply;  and  this  qualification 
is  to  be  taken  in  connection  with  the  general  principle, 
that  a  party  who  puts  in  evidence  concedes  the  right  of  the 


ton  v.  Mason,  21  Mich.  371.  Testi- 
mony that  he  had  seen  the  deceased 
sign  a  paper  was  held  incompetent, 
in  Denman  v.  Jayne,  16  Abb.  Pr. 
N.  S.  317,  on  the  authority  of 
Ressique  v.  Mason,  58  Barb.  89, 
which  has  been  superseded  by 
amendment  of  the  statute.  The 
rule  has  been  pressed  so  far  as  to 
exclude  the  witness  from  testifying 
to  his  own  undisclosed  intent  •  hi 
making  a  transfer  to  the  deceased. 
Tooley  v.  Bacon,  8  Hun,  176,  70 
N.  Y.  37.  But  this  conclusion  is 
to  be  accepted  with  caution.  In- 
tent communicated  to,  or  even 
legally  presumable  to  have  been 
shared  by  the  deceased,  at  the  in- 
terview, could  not  be  proved  by 
the  witness;  but  if  the  transfer  is 
proven  aliunde,  an  undisclosed  in- 
tent is  no  part  of  the  communica- 
tion or  transaction  between  them, 
and,  if  relevant  (see  40  N.  Y.  221) 
might  be  proved  by  the  witness. 

A  witness  will  not  be  permitted 
to  testify  as  to  the  contents  of  a 
lost  letter  written  to  the  decedent 
even  though  the  decedent's  reply 
thereto  is  produced,  under  Pub. 
Acts  1903,  No.  30.  Rohrig's  App., 
176  Mich.  407, 142  N.  W.  Rep.  561. 


85  As,  for  instance,  by  deposition. 
Munn  v.  Owens,  2  Dill.  C.  Ct.  477; 
Munroe  v.  Napier,  52  Geo.  388. 

Where  a  decedent  has  testified 
at  a  trial  prior  to  his  death  as  to 
conversations  had  with  the  plain- 
tiff, and  the  testimony  has  been 
preserved,  the  plaintiff  will  be 
permitted  to  testify  to  the  same 
conversations.  Myrick  v.  Purcell, 
99  Minn.  457,  109  N.  W.  Rep. 
995. 

86  Miller  v.  Atkins,  9  Hun,  9. 
The  testimony  given  at  a  former 

trial  by  a  witness  since  deceased 
may  be  introduced  in  detail,  and 
it  will  not  be  objectionable  as  a 
communication  with  a  deceased 
person,  under  §  1794,  Code  1896. 
Tutwiler  v.  Burns,  160  Ala.  386, 
49  So.  Rep.  455. 

Under  Art.  2302,  Rev.  Stat., 
1895,  in  suits  by  or  against  the 
heirs  or  legal  representatives  of  a 
decedent,  neither  party  shall  be 
allowed  to  testify  against  the 
others  as  to  any  transaction  with, 
or  statement  by,  the  testator  or 
intestate,  unless  called  to  testify 
thereto  by  the  opposite  party. 
Davis  v.  Davis,  44  Tex.  Civ.  App. 
238,  98  S.  W.  Rep.  198. 


EXECUTORS   AND    ADMINISTRATORS 


211 


adverse  party  to  tread  the  same  ground  in  rebuttal,  so  far 
as  it  can  be  done  without  violating  a  positive  prohibitory 
statute.87  But  the  fact  that  a  third  person  interested  in  the 
estate  has  testified  for  the  representative  does  not  open  the 
door  for  the  adversary.  It  is  only  giving  the  testimony  of 
the  decedent  or  incompetent  person,  or  of  the  representative 
who  is  a  party,  that  entitles  the  adversary  to  put  in  that  of 
the  interested  witness.88  And  giving  testimony  as  to  one 
transaction  or  communication  does  not  relieve  the  adversary 
from  the  prohibition  in  respect  to  a  distinct  and  independent 
communication.89  Where  a  party,  who  is  excluded  from 


87  Where  one  party  gave  evidence 
of  admissions  made  by  the  grantor 
of  the  other — Held,  that  the  gran- 
tor could  testify  to  rebut  this  evi- 
dence, although  it  related  to  trans- 
actions with  a  deceased  person 
through  whom  the  former  claimed 
title.  Cole  r.  Denue,  3  Hun,  610. 
Where  testimony  to  oral  declara- 
tions of  the  deceased  was  ad- 
mitted— Held,  that  counter  declar- 
ations in  writing  were  admissible. 
Smith  v.  Christopher,  16  Abb.  Pr. 
N.  S.  332.  Plaintiff  having  put  in 
evidence  letters  by  defendant  to  a 
person  since  deceased — Held,  that 
defendant  was  entitled  to  give 
testimony  explaining  away  the 
letters,  although  such  testimony 
related  to  a  transaction  with  the 
deceased.  Sanford  v.  Sanford,  61 
Barb.  293.  If  the  executor  or  ad- 
ministrator testifies  to  an  admis- 
sion by  the  plaintiff  that  the  de- 
mand had  been  satisfied  by  the 
decedent,  plaintiff  can,  by  way  of 
explaining  or  contradicting  the 
testimony,  testify  that  no  such 
settlement  was  made.  Cousins  v. 
Jackson,  52  Ala.  265.  If  a  witness 


testifies  that  a  party  admitted 
certain  transactions  with  the  de- 
ceased, the  party  may  contradict 
this.  Martin  v.  Jones,  59  Mo.  187. 
An  executor  who  claims  money 
personally  on  the  ground  of  its 
having  been  a  gift  from  the  testator 
is  not  competent  to  testify  as  to 
any  fact  occurring  in  the  lifetime 
of  the  testator,  except  as  to  con- 
versations or  transactions  testified 
to  by  the  opposite  party  or  party 
in  interest  as  having  occurred  be- 
tween them  and  him  (the  executor) 
under  Rev.  St.,  §  2,  ch.  51.  Platt 
v.  Williams,  175  111.  App.  1. 

88  Canaday  v.  Johnson,  40  Iowa, 
587. 

89  Goodwin  v.  Hirsche,  37  Super. 
Ct.  (J.  &  S.)  511.    "Section  829 
recognizes  the  right  of  a  party, 
suing  as  executor  or  administrator, 
to  testify  in  his  own  behalf  to  a 
personal  transaction  or  communica- 
tion between  the  witness  and  the 
deceased,  if  it  is  otherwise  com- 
petent.   In  that  case  the  adverse 
party  may  also  testify  against  the 
executor  or  administrator,  but  the 
testimony,  if  it  involves  a  personal 


212  ACTIONS   BY   AND   AGAINST 

testifying  in  his  own  behalf  as  to  a  personal  transaction  with 
a  deceased  person,  upon  cross-examination  of  the  adverse 
party  draws  out  testimony  in  regard  to  such  transaction, 
this  does  not  bring  him  within  the  exception  to  the  prohibi- 
tion and  permit  him  to  testify;  as  in  such  case  the  adverse 
party  is  not  "examined  in  his  own  behalf"  within  the  mean- 
ing of  the  exception.90 

25.  Form  of  Offer  of  Testimony  in  Rebuttal. 

Where  the  door  is  opened  for  the  testimony  of  the  party 
or  interested  witness,  by  the  giving  of  that  of  the  other,  the 
offer  need  not  be  confined  to  the  disputable  part  of  the  testi- 
mony which  has  been  given.  In  this  case,  as  in  the  case  of 
an  offer  hi  the  first  instance,  the  witness  may  be  sworn 
unless  it  appears  that  he  could  testify  to  nothing;  and  his 
examination  should  be  restricted  to  the  matters  as  to  which 
the  objecting  party  has  given  the  evidence.91 

26.  The  United  States  Courts  Rule. 

In  the  courts  of  the  United  States,  no  witness  can  be  ex- 
transaction  or  communication  with  transaction  or  communication  be- 
the  deceased,  must  be  confined  tween  himself  and  the  deceased." 
strictly  to  the  same  transaction  Martin  v.  Hillen,  142  N.  Y.  140, 
or  communication  to  which  the  144,  36  N.  E.  Rep.  803. 
executor  or  administrator  has  al-  M  Corning  v.  Walker,  100  N.  Y. 
ready  testified  hi  his  own  behalf.  547,  3  N.  E.  Rep.  290. 
It  was  competent  for  the  defendant,  By  cross-examining  an  interested 
if  he  could,  to  testify  in  regard  to  party  relative  to  conversations 
the  same  transaction  referred  to  with  a  deceased  person,  the  cross- 
by  the  plaintiff  in  her  testimony,  examining  party  waives  the  right 
(McLaughlin  v.  Webster,  141  N.  Y.  to  exclude  such  testimony,  and  the 
76.)  Confining  himself  to  that  party  examined  may  give  further 
transaction  he  could  testify  to  any  testimony  as  to  such  conversations 
fact  or  circumstance  that  was  a  at  any  appropriate  tune  hi  the 
part  of  or  involved  in  it  that  tended  trial,  though  not  questioned  rela- 
to  contradict  or  weaken  the  plain-  tive  thereto  on  redirect.  Stair  v. 
tiff's  version  of  it.  But  he  could  McNulty,  133  Minn.  136,  157 
not  explain,  impair  or  contradict  N.  W.  Rep.  1073. 
the  plaintiff's  version  by  means  of  9l  Brown  v.  Richardson,  20  N.  Y. 
another  and  independent  personal  472,  rev'g  1  Bosw.  402. 


EXECUTORS   AND    ADMINISTRATORS 


213 


eluded  ain  any  civil  action,  because  he  is  a  party  to  or  inter- 
ested in  the  issue  tried:  Provided,  that  in  actions  by  or 
against  executors,  administrators,  or  guardians,  in  which 
judgment  may  be  rendered  for  or  against  them,  neither  party 
shall  be  allowed  to  testify  against  the  other,  as  to  any  trans- 
action with,  or  statement  by,  the  testator,  intestate,  or 
ward,  unless  called  to  testify  thereto  by  the  opposite  party, 
or  required  to  testify  thereto  by  the  court.  In  all  other  re- 
spects, the  laws  of  the  State  in  which  the  court  is  held  shall 
be  the  rules  of  decision  as  to  the  competency  of  witnesses 
in  the  courts  of  the  United  States  in  trials  at  common  law, 
and  in  equity  and  admiralty."  92 


92  U.  S.  R.  S.,  §  858.  Under  this 
act,  if  the  decedent  had  been  ex- 
amined in  his  own  behalf,  and  his 
deposition  was  read  on  the  trial, 
by  his  representative,  the  adverse 
party  is  competent  on  his  own  be- 
half. Mumm  v.  Owens,  2  Dill.  C. 
Ct.  475.  But  an  ex  parte  order  ob- 
tained by  a  party  before  process 
issued  for  his  own  examination,  is 
not  the  requirement  of  the  court 
intended.  Eslava  v.  Mozange,  1 
Woods,  623. 

Section  858  of  U.  S.  Revised 
Statutes  (Comp.  St.,  1901,  p.  659) 
was  amended  by  Act  of  June  29, 
1906,  c.  3608,  34  Stat.  618,  to  read 
as  follows: 

"Sec.  858.  The  competency  of 
a  witness  to  testify  in  any  civil 
action,  suit  or  proceeding  in  the 
courts  of  the  United  States  shall 
be  determined  by  the  laws  of  the 
State  or  Territory  in  which  the 
court  is  held."  Now  U.  S.  Comp. 
Stat.,  §  1464. 

In  the  federal  court,  although  the 
witness  may  be  disqualified  under 
the  local  statute,  he  will  neverthe- 


less be  allowed  to  testify  if  he  is 
competent  under  U.  S.  Rev.  St., 
§858.  Crawford  v.  Moore,  28 
Fed.  Rep.  824. 

U.  S.  Rev.  Stat.,  §858,  is  ap- 
plicable alone  to  suits  by  or  against 
executors,  administrators  or  guard- 
ians and  does  not  apply  to  suits  by 
or  against  assignees  in  bankruptcy. 
Hobbs  v.  McLean,  117  U.  S.  567, 
6  Super.  Ct.  870,  29  L.  ed.  940. 

The  restriction  under  U.  S.  Rev. 
St.,  §  858,  does  not  apply  to  a  pro- 
ceeding for  taking  an  account.  Char- 
lotte v.  Soutter,  28  Fed.  Rep.  733. 

Under  §  858,  U.  S.  Rev.  St.,  as 
amended  in  1906  the  claimant 
against  the  estate  of  a  deceased 
bankrupt  cannot  testify  concerning 
personal  transactions  with  the  de- 
cedent.^ Matter  of  Thompson,  205 
Fed.  Rep.  556. 

Where  the  action  is  brought  in 
the  federal  court,  U.  S.  Rev.  Stat., 
§  858,  is  paramount,  and  the  State 
statute  is  not  the  test.  Smith  v. 
Au  Gres  Tp.  (Mich.),  150  Fed. 
Rep.  257, 80  C.  C.  A.  145, 9  L.  R.  A. 
N.  S.  876. 


CHAPTER  V 


ACTIONS  BY  AND  AGAINST  HEIRS  AND  NEXT  OF  KIN, 
DEVISEES  AND  LEGATEES 


I.  DEATH. 

1.  Direct  testimony. 

2.  Registry  of  death  or  burial. 

3.  Presumptions  of  death,  and 

of  the  time  of  death. 

4.  Circumstances     raising     a 

natural    presumption    of 
death. 

5.  Voyages  and  other  special 

perils. 

6.  Seven  years'  absence  in  case 

of  life-estates. 

7.  Seven  years'  rule  hi  other 

cases. 

8.  Absence  and  inquiry. 

9.  Rebutting  the  presumption. 

10.  Time  of  presumed  death. 

11.  The  English  rule. 

12.  The  American  rule. 

13.  Survivorship    in    common 

casualty. 

13a.  Presumption    as    to    de- 
scendants. 

II.  MARRIAGE. 

14.  Burden  of  proof  and  pre- 

sumptions. 

15.  Direct  evidence  of  marriage. 

16.  Certificate  or  registry. 

17.  Indirect  evidence  of  mar- 

raige. 

18.  Cohabitation  and  repute. 

19.  Cohabitation  and  declara- 

tions. 

20.  Marriage  after  meretricious 

intercourse. 
214 


21.  Second  marriage  during  ab- 

sence. 

22.  Rebutting  evidence  of  mar- 

riage. 

23.  Foreign  law. 

III.  ISSUE  AND  FAILURE  OP  ISSUE. 

24.  Burden  of  proof. 

25.  Presumptions  as  to  failure 

of  issue. 

26.  Escheat. 

27.  Possibility  of  issue  extinct. 

28.  Registry  of  birth  or  bap- 

tism. 

29.  Consorting  as  a  family. 

30.  Direct  testimony  as  to  age. 

31.  Physician's    testimony    or 

account. 

32.  Legitimacy;  burden  of  proof 

and  presumptions. 

33.  Parents'  testimony  and  dec- 

larations. 

IV.  HEARSAY  AS  TO  FACTS  OF  FAM- 

.      ILY  HISTORY   (PEDIGREE). 

34.  Grounds  of  receiving  it;  and 

its  weight. 

35.  What  facts  are  within  the 

rule. 

36.  Whose  declarations  may  be 

proved. 

37.  Family  records. 

38.  Other  written  declarations. 

39.  General  family  repute. 

40.  Declarations  in  view  of  con- 

troversy. 


ACTIONS   BY   AND   AGAINST   HEIRS,    ETC. 


215 


41.  Repute  beyond  the  family; 

acquaintance;  newspaper 
notice;  insurance. 

42.  Best    and    secondary    evi- 

dence. 

V.  REGISTRY  OP  FACTS  OP  FAMILY 

HISTORY  (PEDIGREE). 

43.  Registries     authorized    by 

law. 

44.  Registries  not  authorized  by 

law. 

45.  Best    and    secondary    evi- 

dence. 

46.  Impeaching  registries. 

VI.  JUDICIAL   RECORDS,    SHOWING 

FACTS  OF  FAMILY  HISTORY 
(PEDIGREE). 

47.  Letters   of   administration, 

etc. 

48.  Judgments  and  verdicts. 

VII.  IDENTITY.    . 

49.  Necessity  of  proof. 

50.  Mode  of  proof. 

VIII.  NATIONAL  CHARACTER;  AND 

DOMICILE. 

51.  Citizenship  and  alienage. 

52.  Naturalization. 

53.  Nature  of  the  question  of 

domicile. 

54.  Presumptions;  and  material 

facts  as  to  domicile. 

55.  Change  of  domicile. 

56.  The  intent. 

57.  Evidence  of  residence,  and 

of  intent. 

IX.  WILLS. 

58.  Presumptions,  and  burden 

of    proof    as    to    intes- 
tacy. 


59.  Domestic    will   proved   by 

producing  probate. 

60.  Decree   of   probate    court, 

how  far  conclusive. 

61.  Formalities  of  execution. 

62.  Testamentary  capacity. 

63.  Conduct  and  declarations  of 

testator. 

64.  Opinions      as    to    mental 

soundness. 

65.  Hereditary  insanity. 

66.  Inquisitions,  and  other  ad- 

judications. 

67.  Undue  influence; — the  bur- 

den of  proof. 

68.  Indirect  evidence. 

69.  Relevant  facts. 

70.  Declarations  and  conduct  of 

testator. 

71.  Fraud. 

72.  Revocation. 

73.  Marring  the  document. 

74.  Disappearance  of  the  docu- 

ment. 

75.  Testator's  declarations. 

76.  Subsequent     testamentary 

acts. 

77.  Constructive  revocations. 

78.  Action  to  establish  lost  or 

destroyed  will. 

79.  Foreign  will. 

80.  Ancient  will. 

X.  EXTRINSIC    EVIDENCE    AS    TO 
WILLS. 

81.  Effect  of  the  statute  of  mils. 

82.  Legitimate   objects   of  ex- 

trinsic evidence. 

83.  Reasons  for  its  liberal  ad- 

mission. 

84.  Reasons  for  its  strict  exclu- 

sion. 

85.  Exceptional  rule  as  to  evi- 

dence in  rebuttal. 


216 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


86-88.  Extrinsic   aid    in    read- 
ing. 

89,  90.  Extrinsic  aid  in  testing 
validity. 

91-107.  Extrinsic  aid  in  apply- 
ing. 

108-115.  Extrinsic  aid  in  execut- 
ing. 

116.  Time  of  declarations  bear- 

ing on  intention. 

XI.  ADVANCEMENTS. 

117.  The  general  presumption. 

118.  Advancement   by   deed  of 

real  property. 

119.  Purchase     in     name      of 

child. 

120.  Other  transfers. 

121.  Entries  in  account. 

122.  Declarations     and    admis- 

sions. 

123.  Value. 


124.  Testamentary  clauses  as  to 

advancements. 

XII.  TITLE,    DECLARATIONS,    AND 

JUDGMENTS. 

125.  Ancestor's  title,  and  succes- 

sor's election. 

126.  Declarations     and     admis- 

sions of  the  ancestor  as  to 
title,  etc. 

127.  Declarations  of  third  per- 

sons. 

128.  Declarations  of  successors, 

representatives  and  bene- 
ficiaries. 

129.  Judgments. 

XIII.  ACTION   TO    CHARGE    HEIR, 

NEXT  OP  KIN,  ETC.,  WITH 
ANCESTOR'S  DEBT. 

130.  Material  facts. 

131.  Mode  of  proof. 


I.  DEATH 
1.  Dkect  Testimony. 

Death,  like  birth  and  marriage,  and  the  number  and 
names  of  children,  etc.,  may  be  proved  by  the  testimony  of  a 
witness  directly  to  the  fact,  and  such  testimony  is  not  neces- 
sarily rendered  incompetent  by  its  appearing  that  his  memory 
is  aided  by  family  records  not  produced,93  nor  even  that 
he  was  not  an  eye-witness  of  the  occurrence.  When  such 
testimony  is  offered  the  adverse  party  may,  if  he  choose, 
interpose  with  cross-examination  to  ascertain  if  the  witness 
has  personal  knowledge  of  the  occurrence.  If  he  has  not, 


"Secrist  v.  Green,  3  Wall. 
750. 

"Death  may  be  established  by 
direct  testimony  of  witnesses  who 
are  able  to  say  from  personal  knowl- 
edge that  the  party  claimed  to  be 


dead  is,  hi  fact  dead;  that  is  upon 
proof  of  facts  from  which  a  pre- 
sumption of  death  arises."  Werner 
v.  Fraternal  Bankers'  Reserve  So- 
ciety, 172  Iowa,  504,  154  N.  W. 
Rep.  773. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


217 


the  burden  is  thrown  upon  the  party  calling  him  to  show 
the  conditions  of  lapse  of  time,  relationship  or  information 
which  render  hearsay  competent  under  the  rules  stated  be-' 
low;94  but  such  testimony,  whether  admitted  after  scrutiny 
or  without  objection,  is  not  very  cogent.95  Its  weight  de- 
pends much  on  the  absence  of  other  evidence  to  the  con- 
trary. The  declaration  of  a  living  person  as  to  the  fact  of 
death  cannot  be  received  in  lieu  of  his  sworn  testimony  as  a 
witness  in  the  cause.96  And  the  better  rule  excludes  as  evi- 
dence a  general  reputation  of  death  among  friends  and 
acquaintances.97 


94  See  paragraphs,  33,  etc. 

»sSee  Scheel  v.  Eidman,  77  111. 
301. 

Death  of  a  person  may  be  proved 
by  hearsay  evidence.  Turner  v. 
Sealock,  21  Tex.  Civ.  App.  594,  54 
S.  W.  Rep.  358. 

Death  is  a  fact  which  may  be 
proved  by  circumstantial  evidence. 
Harvey  v.  Fidelity  &  Casualty  Co., 
200  Fed.  Rep.  925,  119  C.  C.  A. 
221;  Fidelity  Mut.  Life  Assoc.  v. 
Mettler,  185  U.  S.  308,  22  Sup.  Ct. 
662,  46  L.  ed.  922;  Metropolitan 
Life  Ins.  Co.  v.  Lyons,  50  Ind. 
App.  534,  98  N.  E.  Rep.  824. 

Parol  evidence  is  admissible  even 
as  an  injdirect  proof  of  death. 
Bailey  p.  Bailey,  36  Mich.  181. 

94  Nolan  v.  Nolan,  35  App.  Div. 
(N.  Y.)  339,  341-342. 

A  declaration  made  by  an  ad- 
ministrator out  of  court  has  no 
probative  force  as  evidence  of  the 
death  of  the  intestate  or  of  the 
time  of  such  death.  Harris  v. 
State  Bank,  49  N.  Y.  Misc.  458, 
97  N.  Y.  Supp.  1044. 

97  In  re  Hurlburt's  Estate,  68  Vt. 
366,  381,  35  Atl.  Rep.  77. 


Common  reputation  hi  the  family 
of  one  alleged  to  be  dead  is  com- 
petent evidence  not  only  of  the 
death  but  also  of  the  tune  of  such 
death.  Morrill  v.  Foster,  33  N.  H. 
379;  Mason  v.  Fuller,  45  Vt.  29; 
American  Life  Ins.,  etc.,  Co.  v. 
Rosengle,  77  Pa.  507. 

Proof  that  there  was  a  general 
belief  and  repute  in  the  community 
that  the  absentee  was  dead  is  not 
competent  to  prove  his  death  or  to 
raise  a  presumption  of  death.  Fi- 
delity Mutual  Life  Assoc.  v.  Met- 
tler, 185  U.  S.  308,  22  Sup.  Ct.  662, 
46  L.  ed.  922;  Vought  v.  Williams, 
46  Hun  (N.  Y.),  638. 

The  rule  as  to  the  admission  of 
hearsay  evidence  to  prove  the 
death  of  an  individual  is  restricted 
to  proving  reputation  of  death  by 
a  surviving  member  of  the  family, 
and  the  reputation  must  be  de- 
rived from  the  declarations  of  de- 
ceased members  of  the  family. 
General  reputation,  even  among 
the  friends  and  acquaintances  of  the 
deceased  is  not  admissible.  Denbo 
v.  Boyd,  194  Mo.  App.  121,  185 
S.  W.  Rep.  236. 


218  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

2.  Registry  of  Death  or  Burial. 

Death  may  be  proved  by  an  official  registry  of  the  death, 
kept  pursuant  to  statute,98  or  by  a  church  or  other  registry 
of  burial,  shown  to  have  been  kept  in  the  manner  hereafter 
stated ; "  and  upon  the  same  principle  the  entry  of  death  in 
a  hospital  register  would  be  competent.1  A  burial  registry 
kept  without  authority  of  statute  is  not,  as  an  official  regis- 
try of  death  may  be,  evidence  of  the  time  of  death,  any 
further  than  to  show  that  it  was  presumably  within  a  reason- 
able season  previous  to  the  burial,  unless  the  time  of  death  is 
shown  to  have  been  recorded  by  direction  of  a  member  of  the 
family  since  deceased,  so  as  to  bring  it  within  the  rule  here- 
after noticed  of  declarations  as  to  facts  of  pedigree. 

3.  Presumptions  of  Death  and  of  the  Time  of  Death. 

He  who  founds  his  claim  on  an  assertion  of  death,  must 
give  some  evidence  from  which  the  law  or  the  jury  may  infer 
that  death  has  occurred ;  for  as  against  him  the  presumption 
of  law  is  that  a  person  of  whom  nothing  is  known  but  that 

98  But  a  memorandum  indicating  "  See  paragraph  41,  below, 

death  is  not  competent  merely  be-  The  record  of  a  death  certificate 

cause  found  in  an  official  record  filed  in  the  office  of  the  clerk  of  a 

kept  for  other  purposes.    Ridgeley  city  where  a  body  is  found  is  ad- 

r.  Johnson,  11  Barb.  527.  missible  as  evidence  of  the  time 

The  courts  of  the  State  of  Wash-  and  cause  of  death.    Shamlian  v. 

ington  are  not  required  to  accept  Equitable  Ace.  Co.,  226  Mass.  67, 

as  prima  fade  evidence  the  certifi-  115  N.  E.  Rep.  46. 

cate  of  death  of  a  person,  issued  by  1  See  Doe  v.  Andrews,  15  Q.  B. 

the  bureau  of  vital  statistics  of  the  759. 

State  of  Kentucky,  or  any  sister  The  fact  that  a  will  was  filed, 

State.    Thompson  v.  Seattle,  R.  &  probated  and  the  proceedings  duly 

S.  Ry.  Co.,  71  Wash.  346,  128  Pac.  recorded,  is  presumptive  evidence 

Rep.  1070.  of    the    death    of    the    testator. 

A  certificate  of  death,  certified  Keenon  v.  Burkhardt   (Tex.  Civ. 

from  the  state  department  of  health  App.),  162  S.  W.  Rep.  483. 

is  competent  evidence  of  the  death  A  church  record  of  a  death  is 

of  a  witness  to  a  will.    In  re  Hall,  prima  fade  evidence  thereof.   Sand- 

154   N.  Y.  Supp.  317,   90   Misc.  berg  v.  State,    113  Wis.   578,  89 

216.  N.  W.  Rep.  504. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


219 


he  was  living  at  a  certain  time,  continues  to  live,2  at  least 
until  he  would  reach  the  age  of  one  hundred,  after  which  he 
may  be  presumed  to  be  dead  in  the  ordinary  course  of  na- 
ture.3 When  there  is  no  definite  evidence  of  the  fact  of  death, 
as  in  the  case  of  a  person  absent  and  unheard  of,  the  law  re- 
ceives all  proper  evidence  of  the  circumstances  which  can 
throw  light  upon  motive,  cause,  and  casualty,  and  in  civil 
cases  inquires  not  whether  it  is  possible  that  he  can  be  alive, 
but  whether  the  circumstances  do  not  warrant  that  strong 
probability  of  death  upon  which  a  court  of  justice  should 
act.4  And  the  tendency  of  such  circumstances  may  be 


2  O'Gara  v.  Eisenlohr,  38  N.  Y. 
296,  and  cases  cited;  Duke  of  Cum- 
berland v.  Graves,  9  Barb.  595. 

When  one  is  shown  to  have  been 
alive  the  presumption  is  that  he 
continues  to  live.  Rosenblum  v. 
Eisenberg,  123  N.  Y.  App.  Div. 
896,  108  N.  Y.  Supp.  350;  People 
v.  Ryder,  124  N.  Y.  500,  26  N.  E. 
1040;  Grier  v.  Canada,  119  Tenn. 
17,  107  S.  W.  Rep.  970. 

A  child  once  shown  to  have  been 
alive  will  be  presumed  to  be  living. 
Lewis  v.  People,  87  111.  App.  588. 

The  presumption  that  one  who 
was  living  at  an  antecedent  date  is 
still  living  continues  only  for  a 
reasonable  period,  when  it  must  be 
presumed  that  he  is  dead.  One 
who  executed  and  acknowledged  a 
deed  eighty  years  ago  will  be  pre- 
sumed to  be  dead.  Young  v. 
Shulenberg,  165  N.  Y.  385,  59 
N.  E.  Rep.  135,  90  Am.  St.  Rep. 
730. 

One  who  has  not  been  heard  of 
for  three  years  will  be  presumed 
to  be  living.  Hartley  v.  Boston, 
etc.,  Ry.  Co.,  198  Mass.  163,  83 
N.  E.  Rep.  1093. 


There  is  no  presumption  that  a 
person  who  was  alive  hi  1865  is 
dead  in  1895.  Dworsky  v.  Arndt- 
stein,  29  N.  Y.  App.  Div.  274,  51 
N.  Y.  Supp.  597. 

3  Hayes   v.   Berwick,   2   Martin 
(La.),  138;  Watson  v.  Tindall,  24 
Geo.  474;  Sprigg  v.  Moale,  28  Md. 
497,   505;   Quaker  Realty  Co.   v. 
Starkey,  136  La.  28,  66  So.  Rep. 
386,  L.  R.  A.,  1916,  B  1201,  Ann. 
Gas.,  1916,  D.  248. 

The  death  of  an  absentee  who  is 
less  than  100  years  old  must  be  es- 
tablished; it  will  not  be  presumed. 
Willett  v.  Andrews,  51  La.  Ann. 
486,  25  So.  Rep.  391;  Martinez  v. 
Vives,  32  La.  Ann.  305;  Iberia 
Cypress  Co.  v.  Thorgeson,  116  La. 
218,  40  So.  Rep.  682. 

4  Merritt  v.  Thompson,   1  Hilt. 
550,  555,  and  cases  cited. 

"There  is  no  presumption  of 
death  until  the  expiration  of  seven 
years  after  being  heard  from,  and 
after  seven  years  there  is  no  pre- 
sumption of  either  life  or  death  at 
any  particular  time  during  the 
seven  years  in  the  absence  of  evi- 
dence raising  such  presumption." 


220  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

aided  by  the  presumption  of  innocence,  as,  for  instance, 
where  continued  life  would  prove  guilt  in  the  party  to  a 
second  marriage.5 

Presumptions  drawn  from  the  circumstances  of  absence 
may,  and  often  do  suffice,  to  establish  that  a  person  was 
dead  at  and  after  a  specific  date,  without  affording  any  in- 
dication that  in  fact  he  died  on  that  date,  or  on  any  given 
date.  The  law,  which  follows  common  reason  in  sifting 
this  kind  of  evidence,  often  agrees  with  the  family  in  giving 
up  the  lost  one  as  dead,  but  the  question  at  what  date  he 
died  may  remain  inscrutable  for  the  law  as  well  as  for  the 
family.  Upon  the  first  question  the  law  aids  a  decision  by 
the  convenient  artificial  rule  that  one  absent  and  unheard 
of  for  seven  years  may  be  presumed  no  longer  living. 
Whether  any  artificial  rule  exists  aiding  the  decision  of  the 
question  at  what  time  his  death  shall  be  deemed  to  have 
occurred,  is  discussed  below. 

4.  Circumstances    Raising    a    Natural    Presumption    of 

Death. 

Death  within  a  very  recent  time  may  be  inferred  from  the 
circumstances  of  absence,  or  disappearance.  Sudden  dis- 
appearance is  not  alone  enough,  in  the  case  of  a  man  without 
social  or  pecuniary  ties,  or  fixed  abode,6  though  it  may  be  in 
that  of  one  endeared  to  his  home  and  fixed  in  his  habits,7 

White  v.  Brotherhood  of  Locomo-  Where  a  person  has  been  absent 

tive  Firemen,   165  Wis.  418,   162  less  than  seven  years  it  is  possible 

N.  W.  Rep.  441.  to  overcome  the  presumption  of 

6  Smith  v.  Knowlton,  11  N.  H.  the  continuance  of  life  by  showing 

191,  196;  Kelly  v.  Drew,  12  Allen,  facts  which  are  incompatible  with 

107,    110.      Compare    O'Gara    v.  that  theory,  e.  g.,  that  he  was  fond 

Eisenlohr,  38  N.  Y.  296.  of  his  family  and  friends,  comfort- 

"A  document  thirty  years  old  is  ably    and    happily    situated,    of 

presumed  to  be  without  living  wit-  cheerful    temperament    and    good 

nesses   to  its  execution."     In  re  habits.   Johnson  v.  Sovereign  Camp 

Hall,  154  N.  Y.  Supp.  317,  90  Misc.  Woodmen  of  World,  163  Mo.  App. 

216.  728,  147  S.  W.  Rep.  510. 

8  Hancock  v.  American  Ins.  Co.,  7  Id.;  and  see  62  Mo.  121. 

62  Mo.  26,  s.  c.,  3  Centr.  L.  J.  595.  "Affections  which  usually  con- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


221 


or  having  strong  pecuniary  motive  to  appear,  according  to 
his  habit,  if  alive,8  or  in  case  of  one  who  was  last  seen  in  prox- 
imity to  danger,  and  left  his  effects  in  a  situation  suggestive 
of  accident  or  suicide.9  Where  the  presumption  of  death 
turns  upon  unexplained  absence,  all  the  circumstances  sur- 
rounding the  absentee  within  a  reasonable  time  before  his 
departure,  or  at  any  time  afterward,  which,  in  their  nature, 
have  reasonable  bearing  on  the  probabilities,  are  relevant — 
such  as  the  state  of  his  domestic  and  business  relations,  his 
habits,  his  health  of  body  and  mind,  previous  threats  of  sui- 
cide, the  immediate  and  ultimate  purposes  of  his  departure, 
the  circumstances  of  his  correspondence  and  its  cessation, 
etc.10  The  presumption  of  death  from  absence  rests  on  the 


trol  conduct  are  competent  to 
consider  in  determining  whether 
death  is  to  be  presumed  from  ab- 
sence and  silence."  N.  Y.  Life 
Ins.  Co.  v.  Hoick,  59  Colo.  416,  151 
Pac.  Rep.  916. 

8  In  re  Beasney's  Trusts,  L.  R. 
7  Eq.  498. 

Evidence  of  home  ties,  habits, 
character,  etc.,  all  tending  to  show 
improbability  of  intention  to  leave 
home  may  raise  presumption  of 
death  without  regard  to  duration 
of  the  absence.  Coe  v.  National 
Council  K.  &  L.  S.,  96  Neb.  130, 
147  N.  W.  Rep.  112,  L.  R.  A.  1915, 
B.  744,  Ann.  Gas.  1916,  B.  65. 

•Lancaster  v.  Washington  Life 
Ins.  Co.,  62  Mo.  121,  129. 

"While  a  person  unheard  of  for 
a  time  is  presumed  to  be  alive  until 
the  expiration  of  seven  years,  the 
absence  coupled  with  other  cir- 
cumstances may  be  sufficient  to 
prove  death  at  a  much  earlier 
time."  Western  Gram  &  Sugar 
Products  Co.  v.  PiUsbury,  173  Gal. 
135,  159  Pac.  Rep.  423. 


"The  presumption  of  life  con- 
tinues until  overcome  or  displaced 
by  a  more  potent  presumption,  i.  e., 
that  of  death;  but  this  latter  pre- 
sumption has  no  retroactive  force. 
To  warrant  the  inference  that  death 
occurred  earlier  than  presumed, 
there  must  be  proof  of  such  facts 
and  circumstances  connected  with 
the  person  whose  life  is  the  subject 
of  inquiry  as,  when  submitted  to 
the  test  of  reason  and  experience, 
would  force  the  conviction  of  death 
within  a  shorter  period."  Haddock 
v.  Meagher  (Iowa),  163  N.  W. 
Rep.  417. 

10  For  illustrations  of  this  prin- 
ciple, see  Tisdale  v.  Ins.  Co.,  26 
Iowa,  170,  again  28  Id.  16,  rev'd  on 
another  point  in  91  U.  S.  (1  Otto), 
238;  Stouvenel  v.  Stephens,  2  Daly, 
319;  Sheldon  v.  Ferris,  45  Barb. 
124;  Hancock  v.  Am.  Ins.  Co.,  62 
Mo.  26,  s.  c.,  3  Centr.  L.  J.  595; 
Garden  v.  Garden,  2  Houst.  574; 
John  Hancock  Ins.  Co.  v.  Moore, 
16  Am.  L.  Reg.  N.  S.  214. 

One  who  has  been  absent  less 


222 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


fact  that  it  is  strange  that  a  man  should  absent  himself, 
without  communicating  with  his  friends  if  living  n — hence 
is  is  aided  by  whatever  in  his  situation  and  habits  makes  it 
the  more  strange,  and  is  impaired  by  whatever  makes  it 
easily  credible.12 

6.  Voyages,  and  Other  Special  Perils. 

It  is  well  settled  that  evidence  that  at  last  accounts  the 
absentee  was  exposed  to  great  and  immediate  peril  may,  in 
connection  with  the  failure  of  further  tidings,  raise  a  pre- 
sumption of  a  death  consequent  on  the  peril.13  So  one  who 


than  seven  years  is  presumed  to 
be  living,  but  this  presumption 
may  be  overcome  by  proof  of  facts 
and  circumstances  tending  to  es- 
tablish death  within  a  shorter 
period.  Groff  v.  Groff,  36  App. 
D.  C.  560;  Alexander  v.  Alexander, 
36  App.  D.  C.  78. 

11  Per  LD.  DENMAX,  2  Mees.  & 
W.  913. 

"The  principle  upon  which  the 
presumption  of  death  arises  from 
absence  and  silence  is  that  the  ab- 
sentee, if  living,  would  probably 
have  communicated  with  friends 
and  relatives,  but  that  presump- 
tion does  not  arise  when  absence 
and  silence  would  be  necessary  to 
accomplish  the  purpose  for  which 
he  left."  N.  Y.  Life  Ins.  Co.  v. 
Hoick,  59  Colo.  416,  151  Pac.  Rep. 
916. 

12  See  paragraph  9,  below.    Thus 
the  mere  fact  that  the  person  was 
absent  as  a  mariner  does  not  raise 
a  presumption  of  death  before  the 
lapse  of  seven  years.    Eagle's  Case, 
3  Abb.  Pr.  218,  s.  c.,  4  Bradf.  117; 
and   see   Smith   v.   Knowlton,    11 
N.  H.   191,   197;  Burr  v.  Sim,  4 


Whart.  150,  171.  Death  may  be 
proved  in  case  of  a  person  unheard 
of  for  a  long  period  of  time  by 
showing  facts  from  which  a  rea- 
sonable inference  would  lead  to 
that  conclusion;  and  the  time  of 
the  death  may  be  fixed  with  more 
or  less  certainty  in  the  same  man- 
ner. Johnson  v.  Merithew,  80 
Me.  Ill,  6  Am.  St.  Rep.  162,  13 
Atl.  Rep.  132. 

The  proof  upon  which  the  pre- 
sumption of  death  is  based  may 
consist  entirely  of  circumstantial 
evidence,  provided  it  is  clear  and 
convincing.  Duff  v.  Duff,  156  Mo. 
App.  247,  137  S.  W.  Rep.  909. 

13  Straub  v.  Ancient  Order  United 
Workmen,  2  App.  Div.  (N.  Y.) 
138;  Eagle's  Case,  3  Abb.  Pr.  218; 
s.  c.,  4  Bradf.  117;  Merritt  v. 
Thompson,  1  Hilt.  550,  555,  and 
cases  cited. 

When  the  circumstances  sur- 
rounding the  testator  when  last 
seen  were  such  as  to  justify  the 
conclusion  that  he  died  as  a  result 
of  those  circumstances — e.  g.,  when 
he  was  going  into  battle,  or  falling 
from  a  ship — there  is  no  need  of 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  223 

has  sailed  in  a  vessel  which  has  never  been  heard  of,  after 
such  lapse  of  time  as  would  be  sufficient  to  allow  information 
to  be  received  from  any  part  of  the  world  to  which  the  vessel 
or  persons  on  board  might  be  supposed  to  have  been  carried, 
may  be  presumed  to  be  dead,14  if  on  inquiry  in  the  proper 
quarters  it  appears  that  no  intelligence  of  him  has  been  re- 
ceived.15 In  siach  a  case  evidence  that  the  insurers  of  the 
ship  have  paid  the  policy  as  on  a  total  loss,  is  deemed  com- 
petent evidence  of  the  death  of  one  on  board,16  probably  on 
the  principle  by  which  common  repute  from  proper  sources 
is  received.  The  concurrence  of  a  particular  storm  or  a 
hurricane  season,  with  the  route  of  voyage,  is  relevant,  as 
enhancing  the  probability  of  loss  and  indicating  the  prob- 
able time.17 

6.  Seven  Years'  Absence  in  Case  of  Life  Estates. 

The  inconveniences  resulting  to  persons  entitled  as  re- 
versi oners  upon  the  termination  of  life  estates,  in  England, 
for  want  of  proof  of  the  death,  while  .absent,  of  the  persons 

waiting  seven  years  to  prove  his          14Id.,  and  cases  cited;  White  v. 

death;  his  absence  is  explainable.  Mann,  26  Me.  361,  370;  Merritt 

Matter  of  Miller,  67  N.  Y.  Misc.  i>.  Thompson,  1  Hilt.  550;  Gerry  v. 

660,  124  N.  Y.  Supp.  825.  Post,  13  How.  Pr.  118;  Lancaster  v. 

A  person  who,  when  last  heard  Washington  Life  Ins.  Co.,  62  Mo. 

from,  was  shot  and  carried  to  a  121,  129. 

hospital,  will  be  presumed  to  be          1S  See  paragraphs  8  and  34,  etc., 

dead.     Wells  v.  Margraves  (Tex.  below. 

Civ.  App.),  164  S.  W.  Rep.  881;          "Goods  of  Main,  1  Sw.  &  Tr. 

Davie  v.  Briggs,  97  U.  S.  628,  24  11;    In    re    Button,    1    Curteis, 

L.  ed.  1086.  595. 

The  presumption  of  life  where          "Gibbes  v.   Vincent,    11   Rich. 

the  absences  has  been  for  less  than  (S.   C.)   323;  Silleck  v.  Booth,   1 

seven  years  may  be  met  and  over-  Younge  &  C.  117.    The  same  facts 

come  by  proof  of  circumstances  of  which,  under  the  law  of  insurance, 

specific  peril  to  which  the  person  would  be  competent  as  bearing  on 

disappearing  was  subjected.    Con-  the  presumption  of  loss  of  the  ves- 

tmental  Life  Ins.  Co.  v.  Searing,  sel,  will  in  such  cases  be  usually 

240  Fed.  Rep.  653,  153  C.  C.  A.  relevant   to   the   presumption   of 

451.  death. 


224  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

upon  whose  life  the  termination  depended,  led  in  1667  to 
the  enactment  of  a  statute  18  by  which  seven  years '  absence 
hi  such  cases  raised  a  legal  presumption  of  death.  This  rule, 
in  the  form  adopted  hi  New  York,19  is  as  follows:  "A  person 
upon  whose  life  an  estate  in  real  property  depends,  who  re- 
mains without  the  United  States,  or  absents  himself  hi  the 
state  or  elsewhere  for  seven  years  together,  is  presumed  to 
be  dead  hi  an  action  or  special  proceeding  concerning  the 
property  hi  which  his  death  comes  hi  question,  unless  it  is 
affirmatively  proved  that  he  was  alive  within  that  tune." 
[Continuing  as  to  distribution  of  proceeds  of  sale  in  partition 
suits.]  It  is  not  necessary  for  the  party  relying  on  such  a  stat- 
ute to  prove  either  alternative  specifically,  but  a  general 
proof  of  absence,  showing  a  case  which  must  be  within  one  or 
the  other  alternatives  of  the  statute,  is  enough.20 

7.  Seven  Years'  Rule  in  Other  Cases. 

In  analogy  to  the  statute  as  to  Me  estates,  and  another  as 
to  bigamy,  the  courts  established  the  rule  that  hi  all  cases, 
whatever  presumption  may  be  claimed  of  the  continuance 
of  a  life  from  the  mere  fact  that  it  was  shown  once  to  exist, 
ceases  ^at  the  expiration  of  seven  years  from  the  time  the 
person  was  last  known  to  be  living,  and  that  from  the  mere 
lapse  of  that  time  arises  a  legal  presumption  that  the  person 
is  no  longer  living.  This  presumption,  first  suggested  as  a 
proper  one  for  the  jury  to  draw  in  analogy  to  the  statutes,21 
is  now  a  well-recognized  legal  presumption,  constituting,  in 
the  absence  of  evidence  to  the  contrary,  a  prima  facie  case.22 

18 19  Car.  II,  c.  6;  1  Chitt.  Stat.  sumption  of  death  from  absence 

1370.  for  seven  years.    Bonslett  v.  N.  Y. 

19  N.  Y.  Code  Civ.  Pro.,  §  841.  Life  Ins.  Co.,  190  S.  W.  Rep.  (Mo.) 

*>0sborn  v.  Allen,  26  N.  J.  L.  870. 

(2  Butcher),  388.  22Forsaith   v.    Clark,    1    Foster 

"Doe  d.   George  v.  Jesson,   6  (N.  H.),  409;  King  v.  Paddock,  18 

East,  80,  85.  Johns.  141;  Hitz  v.  Ahlgren,  170 

Evidence  tending  to  show  a  mo-  111.  60,  48  N.  E.  Rep.  1068;  Sherod 

tive  for  an  absentee's  disappear-  v.  Ewell,  104  Iowa,  253,  73  N.  W. 

ance  is  competent  to  rebut  the  pre-  Rep.  493;  In  re  Liter's  Estate,  19 


NEXT    OF   KIN,    DEVISEES   AND    LEGATEES 


225 


8.  Absence  and  Inquiry. 

To  bring  a  case  within  either  a  statutory  or  judicial  rule  as 
to  seven  years '  absence,  it  is  not  enough  that  no  evidence  of 


Mont.  474,  48  Pac.  Rep.  753; 
Northwestern  Mut.  Life  Ins.  Co. 
».  Stevens,  36  U.  S.  App.  401,  71 
Fed.  Rep.  258;  Werner  v.  Fraternal 
Bankers'  Reserve  Society,  172 
Iowa,  504,  154  N.  W.  Rep.  773; 
St.  Martin  v.  Hendershott,  82  Ore. 
58,  151  Pac.  Rep.  706,  160  Pac. 
Rep.  373;  Folk  v.  U.  S.,  233  Fed. 
Rep.  177,  147  C.  C.  A.  183;  Lich- 
tenhan  v.  Prudential  Ins.  Co.,  191 
111.  App.  412. 

An  absentee  who  has  not  been 
heard  of  for  seven  years  will  be 
presumed  to  be  dead  for  the  pur- 
pose of  administering  his  estate. 
White  v.  Emigrant  Industrial  Sav- 
ings Bk.,  146  N.  Y.  App.  Div.  591, 
131  N.  Y.  Supp.  311. 

An  absentee  who  has  not  been 
heard  of  for  seven  years  may  be 
presumed  to  be  dead  at  the  expira- 
tion of  the  seven  years,  for  the 
purpose  of  distributing  an  estate. 
Matter  of  Sullivan,  51  Hun  (N.  Y.), 
378,  4  N.  Y.  Supp.  59;  Barson  v. 
Mulligan,  191  N.  Y.  306,  324,  84 
N.  E.  Rep.  75,  16  L.  R.  A.  N.  S. 
151. 

After  absence  of  seven  years  and 
nothing  heard  by  those  who  would 
ordinarily  hear,  death  will  be  pre- 
sumed. Siyer  v.  Severs,  165  N.  C. 
500,  81  S.  E.  Rep.  685;  Matter  of 
Benjamin,  155  N.  Y.  App.  233, 
139  N.  Y.  Supp.  1091;  Davie  v. 
Briggs,  97  U.  S.  628,  24  L.  ed.  1086. 

After  absence  of  seven  years 
with  no  word  to  relatives  or  friends 


who  would  naturally  receive  it, 
together  with  fruitless  diligent 
searches  made  during  that  time, 
death  will  be  presumed.  Steven- 
son v.  Montgomery,  263  111.  93, 
104  N.  E.  Rep.  1075,  Ann.  Gas. 
1915,  C.  112;  Martin  v.  Modern 
Woodmen  of  America,  158  Mo. 
App.  468,  139  S.  W.  Rep.  231. 

One  who  is  absent  for  seven 
years  without  being  heard  of  will 
be  presumed  to  be  dead  and  his 
children  will  be  allowed  to  share 
in  the  distribution  of  his  deceased 
brother's  estate.  Oziah  v.  Howard, 
149  Iowa,  199, 128  N.  W.  Rep.  364. 

By  special  act  in  Indiana  for  the 
management  of  estates  of  absen- 
tees, one  who  has  been  absent  for 
five  years  without  being  heard  of 
will  be  presumed  to  be  dead  and 
the  date  of  his  death  is  fixed  as  of 
the  first  day  of  his  disappearance. 
But  the  act  is  limited  to  cases  for 
the  management  and  disposal  of 
estates,  and  hi  all  other  cases  the 
common-law  rule  of  seven  years 
with  the  presumption  of  life  during 
that  period  holds.  Connecticut 
Mutual  Life  Ins.  Co.  v.  King,  47 
Ind.  App.  587,  93  N.  E.  Rep.  1046. 

Absence  from  home  for  more 
than  seven  years  without  any 
facts  or  circumstances  tending  to 
explain  it  will  raise  the  presump- 
tion of  death.  Walsh  v.  Metro- 
politan Life  Ins.  Co.,  162  Mo. 
App.  546,  142  S.  W.  Rep.  815; 
Hancock  v.  American  Life  Ins.  Co., 


226 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


the  whereabouts  of  the  person  is  adduced.  There  must  be 
affirmative  evidence  of  absence,  from  his  established  resi- 
dence,23 if  he  had  one,  and  that  he  has  not  been  heard  of  by 


62  Mo.  26;  Duff  ».  Duff,  156  Mo. 
App.  247,  137  S.  W.  Rep.  909; 
Spahr  v.  Mutual  Life  Ins.  Co.,  98 
Minn.  471,  108  N.  W.  Rep.  4. 

In  Wisconsin  it  is  not  necessary 
to  prove  that  diligent  search  and 
inquiry  has  been  made  as  to  a  per- 
son absent  more  than  seven  years 
before  a  prima  facie  case  of  death 
is  established.  Miller  v.  Sovereign 
Camp  Woodmen  of  the  World,  140 
Wis.  505,  28  L.  R.  A.  N.  S.  178 
133  Am.  St.  Rep.  1095,  122  N.  "Vv . 
Rep.  1126. 

Sections  2747,  2748,  Burns'  An- 
notated Statutes,  1908,  which  pro- 
vide for  a  presumption  of  death 
after  a  disappearance  and  absence 
for  five  years,  relate  exclusively  to 
the  settlement  of  estates  of  ab- 
sentees and  do  not  apply  to  an 
action  by  a  beneficiary  under  a  life 
insurance  policy  for  the  proceeds 
of  such  policy.  Metropolitan  Life 
Ins.  Co.  v.  Lyons,  50  Ind.  App.  534, 
98  N.  E.  Rep.  824. 

Disappearance  for  seven  years 
without  being  heard  of  by  those 
most  likely  to  hear  raises  a  pre- 
sumption of  death.  Matter  of 
Smith,  77  N.  Y.  Misc.  76, 136  N.  Y. 
Supp.  825. 

An  unexplained  disappearance, 
followed  by  a  lapse  of  eighteen 
years  without  any  trace  of  the  ab- 
sentee, after  inquiry  in  every  quar- 
ter where  there  was  any  likelihood 
of  finding  a  clue  to  his  whereabouts, 
raised  the  presumption  of  death. 


Matter  of  Wagener,  143  N.  Y. 
App.  Div.  286,  128  N.  Y.  Supp. 
164. 

Under  Article  5707,  Revised 
Statutes,  1911,  one  who  left  his 
home  when  he  was  between  seven- 
teen and  twenty-one  years  of  age, 
and  went  away  with  a  circus  travel- 
ing through  the  country  and  there- 
after has  not  been  seen  or  heard 
from  by  his  relatives  for  a  period  of 
fifty-eight  years,  will  be  presumed 
to  have  died  seven  years  after  his 
departure  from  home.  Wells  v. 
Margraves  (Tex.  Civ.  App.),  164 
S.  W.  Rep.  881. 

There  is  no  presumption  of 
death  because  of  long  absence  until 
the  full  period  of  seven  years  has 
elapsed.  Murphy  v.  Metropolitan 
Life  Ins.  Co.,  155  N.  Y.  Supp. 
1062,  92  Misc.  479. 

Where  by  the  evidence  the  legal 
presumption  of  death  is  estab- 
lished it  is  error  to  submit  the  ques- 
tion to  a  jury.  Page  v.  Modern 
Woodmen  of  America,x  162  Wis. 
259,  156  N.  W.  Rep.  137,  L.  R.  A. 
1916,  F.  438. 

23  Doe  v.  Andrews,  15  Q.  B.  760; 
Stinchfield  v.  Emerson,  52  Me.  465; 
Spurr  v.  Trimble,  1  A.  K.  Marsh. 
278.  The  mere  absence  of  a  person 
from  the  place  where  his  relatives 
reside,  not  his  own  residence,  and 
the  failure  of  his  relatives  to  re- 
ceive letters  from  him  for  a  period 
of  seven  years,  are  not  of  them- 
selves sufficient  to  raise  a  presump- 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


227 


those  who  would  be  likely  to  have  heard  of  him  if  alive.24 
For  this  purpose  such  persons  should  be  called  as  witnesses, 
or  a  reasonable  inquiry  among  them,  or  search  for  them, 
without  success,  must  be  shown.25  If  he  had  a  known  and 


tion  of  death.  Hitz  v.  Ahagren,  170 
111.  60,  48  N.  E.  Rep.  1068. 

Mere  absence  for  seven  years  is 
not  sufficient  to  raise  the  presump- 
tion of  death.  Donovan  v.  Twist, 
105  N.  Y.  App.  Div.  171,  93  N.  Y. 
Supp.  990;  Turner  v.  Sealock,  21 
Tex.  Civ.  App.  594,  54  S.  W.  Rep. 
358;  Washington  v.  Filer,  127  La. 
862/54  So.  Rep.  128;  Francis  v. 
Francis,  180  Pa.  644,  37  Atl.  Rep. 
120, 57  Am.  St.  Rep.  668;  Matter  of 
Davenport,  37  N.  Y.  Misc.  455, 
75  N.  Y.  Supp.  934;  Burnett  v. 
Costello,  15  S.  D.  89,  87  N.  W. 
Rep.  575. 

The  facts  upon  which  the  pre- 
sumption of  death  rests  must  be 
proved.  Matter  of  Board  ef  Edu- 
cation, 173  N.  Y.  321,  66  N.  E.  Rep. 
11. 

24  Doe  v,  Andrews  (above) ;  Duke 
of  Cumberland  v.  Graves,  9  Barb. 
595,  608;  McCartee  v.  Camel,  1 
Barb.  Ch.  455. 

It  must  be  shown  that  the  ab- 
sent one  has  not  been  heard  from 
by  those  who  would  naturally  hear. 
Wentworth  v.  Wentworth,  71  Me. 
72. 

It  is  the  duty  of  a  husband  to 
keep  his  wife  advised  of  his  where- 
abouts and  she  has  a  right  to  believe 
after  ten  years'  silence  on  his  part, 
that  he  is  dead;  she  is  not  required 
to  make  any  endeavor  to  locate 
him.  Estate  of  Harrington,  140 
Cal.  244,  73  Pac.  Rep.  1000,  98 


Am.  Rep.  51;  Jones  v.  Zoller,  32 
Hun  (N.  Y.),  280. 

A  presumption  of  death  is  raised 
by  the  absence  of  a  person  from 
his  domicile  unheard  of  for  seven 
years.  Absence  in  this  connection 
means  that  a  person  is  not  at  the 
place  of  his  domicile,  and  that  his 
actual  residence  is  unknown.  But 
removal  alone  is  not  enough.  The 
further  fact  that  he  has  disap- 
peared from  his  domicile  and  from 
the  knowledge  of  those  with  whom 
he  would  naturally  communicate 
is  necessary  in  order  to  raise  the 
presumption.  Maley  v.  Pa.  R. 
Co.,  258  Pa.  73,  101  Atl.  Rep.  911. 

26  Even  producing  the  only  sur- 
viving relative,  without  further  in- 
quiry, is  not  alone  enough.  Doe  v. 
Andrews  (above).  There  must  be 
some  proof  of  inquirj'  of  persons 
and  at  the  places  where  news  of 
him,  if  living,  would  most  probably 
be  had.  Posey  v.  Hanson,  10 
Tucker  App.  D.  C.  496. 

In  order  to  enforce  the  presump- 
tion of  death  of  a  person  absent 
more  than  seven  years,  there  must 
be  proof  of  diligent  search  at  the 
last  known  place  of  residence,  and 
among  the  relatives,  and  among 
any  others  who  would  be  expected 
to  hear  from  him.  Hitz  v.  Ahlgren, 
170  111.  60,  48  N.  E.  Rep.  1068. 

The  absence  of  a  person  for 
thirty  years  with  no  evidence  of 
an  effort  to  find  him  will  not  give 


228 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


fixed  residence  in  a  foreign  country  when  last  heard  from, 
there  should  be  some  evidence  of  inquiries  made  there.  If 
he  ha4  relatives  in  this  country,  there  should  be  some  evi- 
dence of  inquiries  of  them,  or  an  unsuccessful  search  for 
them  at  their  last  known  place  of  residence:  and  the  mere 
fact  that  letters  addressed  to  relatives  at  a  last  known  place 
of  residence  remained  unanswered,  is  not  sufficient.26  What 


rise  to  a  presumption  of  death. 
Dworsky  v.  Arndtstein,  29  N.  Y. 
App.  Div.  274,  51  N.  Y.  Supp. 
597. 

In  Kansas  it  is  necessary  to 
prove  that  the  relatives  and  friends 
of  the  absentee  have  heard  noth- 
ing and  that  diligent  searches  on 
their  part  have  been  fruitless. 
Caldwell  v.  Modern  Woodmen  of 
America,  89  Kan.  11,  130  Pac. 
Rep.  642. 

Proof  must  be  given  that  there 
was  some  inquiry  made  among 
those  who  would  be  likely  to  hear 
from  the  absentee.  Posey  v. 
Hanson,  10  App.  D.  C.  496. 

In  Texas  it  is  not  necessary  to 
show  that  the  absent  one  had  not 
been  heard  from  by  his  relatives, 
or  friends  for  seven  years,  for  under 
the  statute  (Art.  5707,  R.  S.,  1911) 
mere  proof  of  absence  of  one  from 
his  home  beyond  the  sea  or  else- 
where, for  seven  successive  years 
raises  a  presumption  of  death, 
which  can  be  destroyed  by  proof 
of  the  existence  of  the  absent  one 
within  that  time.  Sovereign  Camp 
Woodmen  v.  Ruedrich  (Tex.  Civ. 
App.),  158  S.  W.  Rep.  170. 

There  must  be  a  lack  of  informa- 
tion concerning  the  absentee  on  the 
part  of  those  persons  likely  to  hear 
from  him;  they  must  be  looked  up 


and  interrogated,  and  the  result 
of  the  inquiry  must  be  given  in 
evidence  at  the  trial.  Modern 
Woodmen  of  America  v.  Gerdom, 
72  Kan.  391,  82  Pac.  Rep.  1100, 
2  L.  R.  A.  N.  S.  809,  7  Ann.  Gas. 
570,  where  numerous  authorities 
are  gathered  in  the  note. 

If  no  inquiries  are  made  at  the 
former  home  of  the  absentee  the 
inference  is  that  he  is  still  living 
there,  and  not  absent  at  all.  Bur- 
nett v.  Costello,  15  S.  D.  89,  87 
N.  W.  Rep.  575. 

Failure  to  notify  the  authorities 
of  an  absentee's  disappearance  or 
to  insert  advertisements  in  news- 
papers is  not  conclusive  evidence 
that  diligent  search  was  not  made. 
Lichtenhan  v.  Prudential  Ins.  Co., 
191  111.  App.  412. 

26  McCartee  v.  Camel,  1  Barb. 
Ch.  455,  463. 

Text  cited  in  University  of  North 
Carolina  v.  Harrison,  90  N.  C.  385; 
Sizer  v.  Severs,  165  N.  C.  500,  81 
S.  E.  Rep.  685. 

The  unexplained  absence  with- 
out any  evidence  that  nothing  had 
been  heard  from  the  absentee  since 
his  disappearance  and  without  any 
showing  that  effort  had  been  made 
to  ascertain  his  whereabouts,  is 
not  sufficient  to  prove  his  death. 
Mackie  v.  Grand  Lodge  A.  0.  W. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


229 


is  a  reasonable  inquiry  is  a  mixed  question  of  law  and  fact, 
to  be  determined  upon  the  particular  circumstances  of  the 
case.27  Where  a  person  removes  from  his  domicile  in  one 
State  to  establish  a  home  for  himself  in  another  State  or 
country,  at  a  place  well  known,  this  is  a  change  of  residence, 
and  absence  from  the  last  domicile  is  that  upon  which  the 
presumption  must  be  built ;  and  if  alive  when  last  heard  from 
at  his  new  domicile  the  presumption  is  that  life  continues.28 


W.  of  Kansas,  100  Kan.  345,  164 
Pac.  Rep.  263. 

27  See  Clarke  v.  Cummings,  5 
Barb.  339,  353. 

Under  §7302,  R.  C.  1905,  the 
presumption  of  death  arises  only 
when  the  absence  for  seven  years  is 
unexplained.  Wright  v.  Jones,  23 
N.  D.  191, 135  N.  W.  Rep.  1120. 

The  question  of  whether  there 
was  diligence  in  the  making  of 
searches  for  the  absentee  is  for  the 
jury.  Caldwell  v.  Modern  Wood- 
men of  America,  89  Kan.  11,  130 
Pac.  Rep.  642. 

What  would  be  sufficient  hi  the 
way  of  efforts  to  locate  the  missing 
person  should  be  measured  by  the 
circumstances  of  each  particular 
case.  Subject  to  this  rule,  the  law 
is  that  the  search  and  inquiry  must 
be  diligent,  and  this  means  that 
degree  of  diligence  which  the  def- 
inition of  the  world  implies.  N.  Y. 
Life  Ins.  Co.  v.  Hoick,  59  Colo.  416, 
151  Pac.  Rep.  916. 

Proper  efforts  to  find  an  absentee 
or  to  ascertain  his  fate  should  be 
shown  but  no  more  should  be  re- 
quired in  the  way  of  search  than 
could  be  reasonably  expected  from 
one's  circumstances.  Swanson  v. 
Modern  Brotherhood  of  America, 
135  Minn.  304, 160  X.  W.  Rep.  779. 


Proof  of  diligent  search  and  in- 
quiry is  not  required  to  establish 
the  presumptive  death  of  a  person 
who  has  been  absent  from  his  home 
and  place  of  residence  for  seven 
years  without  being  heard  from. 
Page  v.  Modern  Woodmen  of 
America,  162  Wis.  259,  156  N.  W. 
Rep.  137,  L.  R.  A.  1916,  F. 
438. 

28  Francis  v.  Francis,  180  Pa.  St. 
646,  647,  37  Atl.  Rep.  120. 

One  whose  case  rests  on  the  pre- 
sumption of  death  of  a  person  after 
an  absence  of  seven  years  must 
prove  that  diligent  effort  was  made 
to  locate  the  absentee  and  every 
inquiry  and  search  has  been  made 
among  his  relatives  and  friends, 
with  the  results.  He  must  produce 
evidence  to  justify  the  inference 
that  death  is  the  probable  reason 
why  nothing  is  known  about  the 
absentee.  Fuller  v.  New  York  Life 
Ins.  Co.,  199  Fed.  Rep.  897,  118 
C.  C.  A.  227. 

In  Missouri  in  order  to  establish 
a  person's  death  by  presumption 
these  facts  must  be  proved:  (1) 
Residence  of  the  person  in  the 
State;  (2)  Departure  of  that  person 
from  the  State;  (3)  Continued  ab- 
sence of  that  person  from  the  State 
for  seven  years.  Carter  v.  Metro- 


230 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


Upon  the  question  whether  a  person  left  a  certain  place 
with  a  certain  other  person,  letters  written  and  mailed  by  him 
at  that  place  to  his  family,  shortly  before  the  time  when 
other  evidence  tends  to  show  that  he  left  the  place,  stating 
his  intention  to  leave  it  with  that  person,  are  competent 
evidence  of  such  intention.29 


politan  Life  Ins.  Co.,  158  Mo.  App. 
368,  138  S.  W.  Rep.  49. 

It  is  not  necessary  to  prove  that 
the  absentee  was  exposed  to  danger 
during  the  seven  years.  Coe  v. 
National  Council  K.  &  L.  S.,  96 
Neb.  130,  147  N.  W.  Rep.  112, 
L.  R.  A.  1915,  B.  744,  Ann.  Gas. 
1916,'B.  65. 

Absence  for  seven  years  and  fail- 
ure to  receive  news  of  any  kind  on 
the  part  of  relatives,  are  necessary 
to  raise  the  presumption  of  death. 
There  is  no  hard  and  fast  rule 
which  can  be  applied  to  every  case, 
for  each  case  must  stand  in  a 
measure  upon  its  own  facts.  Cerf 
v.  Diener,  148  N.  Y.  App.  Div. 
150;  132  N.  Y.  Supp.  1026;  Johns- 
ton v.  Garvey,  139  N.  Y.  App.  Div. 
659,  124  N.  Y.  Supp.  278,  aff'd  in 
201  N.  Y.  548,  95  N.  E.  Rep.  1130. 

Children,  being  incapable,  by 
reason  of  their  tender  years,  of  ab- 
senting themselves  from  the  State, 
or  of  concealing  themselves  within 
it,  should  not  be  subject  to  the 
same  general  rule  applicable  to 
adults.  Modern  Woodmen  of 
America  v.  Ghromley,  41  Okla.  532, 
139  Pac.  Rep.  306,  L.  R.  A.  1915, 
B.  728,  Ann.  Gas.  1915,  C.  1063; 
Manley  v.  Pattison,  73  Miss.  417, 
19  So.  Rep.  236,  55  Am.  St.  Rep. 
543. 

Where  one  leaves  his  domicile 


with  the  announced  intention  of 
establishing  a  permanent  residence 
in  another  place,  and  he  is  known 
to  have  been  alive  there,  absence 
from  such  place  unheard  of  for  a 
period  of  seven  years  would  become 
necessary  in  order  to  raise  a  pre- 
sumption of  death.  Maley  v.  Pa. 
R.  Co.,  258  Pa.  73,  101  Atl.  Rep. 
911. 

29  Mutual  Life  Ins.  Co.  v.  Hill- 
mon,  145  U.  S.  285.  "When  the 
intention  to  be  proved  is  important 
only  as  qualifying  an  act,  its  con- 
nection with  that  act  must  be 
shown,  in  order  to  warrant  the 
admission  of  declarations  of  the 
intention.  But  whenever  the  in- 
tention is  of  itself  a  distinct  and 
material  fact  in  a  chain  of  circum- 
stances, it  may  be  proved  by 
contemporaneous  oral  or  written 
declarations  of  the  party.  The  ex- 
istence of  a  particular  intention  in 
a  certain  person  at  a  certain  time 
being  a  material  fact  to  be  proved, 
evidence  that  he  expressed  that 
intention  at  that  time  is  as  direct 
evidence  of  the  fact,  as  his  own 
testimony  that  he  then  had  that 
intention  would  be.  After  his 
death  there  can  hardly  be  any  other 
way  of  proving  it;  and  while  he  is 
still  alive  his  own  memory  of  his 
state  of  mind  at  a  former  time  is  no 
more  likely  to  be  clear  and  true 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


231 


9.  Rebutting  the  Presumption. 

The  presumption  is  a  convenient  artificial  rule,  defining 
the  limit  of  a  mere  probability,30  and  is  not  conclusive,31  but 
susceptible  alike  of  being  strengthened  and  impaired  by  any 
of  the  circumstances  relevant  to  the  natural  presumption 
of  death  in  case  of  long  absence.32  The  presumption  is 


than  a  bystander's  recollection  of 
what  he  then  said,  and  is  less  trust- 
worthy than  letters  written  by  him 
at  the  very  tune  and  under  circum- 
stances precluding  suspicion  of 
misrepresentation."  Id.  The  hab- 
its and  personal  appearance  of  a 
person  being  shown,  there  is  a  pre- 
sumption that  they  continue  the 
same  unless  the  contrary  is  proved. 
Marston  v.  Dingley,  88  Me.  546, 
34  All.  Rep.  414. 

30  Compare  Ram  on  Facts  (by 
Townshend),  110. 

The  presumption  of  death  does 
not  arise  where  it  is  improbable 
that  there  would  have  been  any 
communication  with  home.  Mat- 
ter of  Miller's  Estate,  9  N.  Y.  Supp. 
639. 

31 R.  v.  Harborne,  2  A.  &  E.  540, 
s.  c.,  4  Nev.  &  Man.  344.  To  rebut 
the  presumption,  it  is  not  necessary 
to  produce  the  testimony  of  persons 
who  have  seen  him,  or  to  produce 
letters  from  him.  It  is  sufficient  to 
produce  evidence  which  shall  satisfy 
the  jury  that  he  has  been  heard 
from  within  the  seven  years.  Such 
evidence  is  usually  and  almost 
necessarily  "hearsay."  Dowd  v. 
Watson,  105  N.  C.  4*76,  18  Am.  St. 
Rep.  920,  11  S.  E.  Rep.  589. 

Text  cited  in  Dowd  v.  Watson, 
105  N.  C.  476,  11  S.  E.  Rep.  589, 
18  Am.  Rep.  920. 


The  presumption  of  death  after 
seven  years  absence  is  compe- 
tent proof  of  death,  which  may 
be  rebutted  by  the  production  of 
other  competent  evidence.  An- 
cient Order  United  Workmen  v. 
Mooney,  230  Pa.  16,  79  Atl.  Rep. 
233;  Thomas  v.  Thomas,  124  Pa. 
646,  17  Atl.  Rep.  182. 

32  Thus  a  court  of  equity,  having 
discretionary  power,  may  require 
security  to  refund,  even  after  the 
lapse  of  twelve  years.  Dowley  v. 
Winfield,  14  Sim.  277.  It  has  been 
held  that  acts  of  a  party  tending  to 
recognize  the  existence  of  the  ab- 
sentee, such  as  reserving  a  fund  for 
him  on  a  trust  accounting,  or  pro- 
ceeding in  a  suit  on  proof  of  per- 
sonal service  of  process  on  him,  is 
competent  as  against  such  party. 
Keech  v.  Rinehart,  10  Penn.  St. 
244. 

"The  presumption  of  death  from 
absence  is  not  conclusive,  but  when 
absence  is  shown  to  have  continued 
for  seven  years  or  more  unaccom- 
panied by  circumstances  reasonably 
accounting  therefor,  on  a  theory 
not  involving  death,  it  becomes 
sufficiently  strong  to  cast  the  bur- 
den of  rebutting  it  on  the  party 
asserting  continuance  of  life." 
Rosencrans  v.  Modern  Woodmen 
of  America,  97  Neb.  568, 150  N.  W. 
Rep.  630  .(following  Magness  v. 


232 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


strengthened  by  the  fact  that  the  person  left  home  for  tem- 
porary purposes; 33  while,  on  the  other  hand,  it  is  weakened 
if  he  left  clandestinely  under  circumstances  indicating  in- 
tention of  concealment  abroad,34  or  appears  to  have  broken 
with  friends  after  departure,  and  ceased  to  desire  inter- 
course.35 And  the  testimony  of  a  witness  that  even  others 
than  members  of  the  family  have  heard  that  he  was  living,36 


Modern  Woodmen  of  America, 
146  Iowa,  1, 123  N.  W.  Rep.  169). 

33  Loring  v.  Steineman,  1  Mete. 
204. 

One  who  leaves  his  home  tem- 
porarily and  does  not  return  or  is 
not  heard  of  will,  after  a  lapse  of 
seven  years,  be  presumed  to  be 
dead.  Johnson  v.  Merithew,  80  Me. 
Ill,  6  Am.  St.  Rep.  162,  13  Atl. 
Rep.  132. 

"Watson  v.  England,  14  Sim. 
28. 

Proof  that  one  who  is  absent 
over  seven  years  is  a  fugitive  from 
justice  will  be  admissible  to  rebut 
the  presumption  of  death.  Mu- 
tual Ben.  Life  Ins.  Co.  v.  Martin, 
108  Ky.  11,  21  Ky.  Law  Rep.  1465, 
55  S.  W.  Rep.  694. 

The  presumption  of  death,  like 
all  others  of  fact  may  be  overcome 
by  legitimate  evidence  opposed  to 
it,  such  as  proof  that  the  absentee 
had  a  motive  for  his  silence,  as  for 
instance  that  he  had  escaped  from 
prison,  or  had  other  reasons  for 
concealing  his  identity.  Com.  v. 
Powell,  256  Pa.  470,  100  Atl.  964. 

To  rebut  the  presumption  of 
deceit  after  an  absence  of  seven 
years,  general  rumor  that  the  ab- 
sentee had  committed  a  certain 
crime,  without  stating  the  source 
of  the  rumor  is  inadmissible.  Lich- 


tenhan  v.  Prudential  Ins.  Co.,  191 
111.  App.  412. 

35  Bowden  v .  Henderson,  2  Smale 
&  G.  360. 

A  deserting  husband  and  father 
is  not  likely  to  communicate  his 
whereabouts  to  the  persons  whom 
he  has  wronged  and  for  whose. sup- 
port he  is  liable,  and  his  death  will 
not  be  presumed  after  an  absence 
of  ten  years.  Van  Buren  v.  Syra- 
cuse, 72  N.  Y.  Misc.  463, 131  N.  Y. 
Supp.  345. 

The  fact  that  a  divorced  man 
is  not  heard  from  for  more  than 
seven  years  after  the  divorce  by 
his  family,  relatives  or  friends  in 
the  place  where  his  divorced  wife 
resided,  does  not  raise  the  pre- 
sumption of  death.  Marquet  v. 
^Etna  Life  Ins.  Co.,  128  Term.  213, 
159  S.  W.  Rep.  733,  L.  R.  A.  1915, 
B  749,  Ann.  Gas.  1915,  B  677. 

A  husband  who  leaves  his  wife 
pursuant  to  the  terms  of  a  separa- 
tion agreement  will  not  be  pre- 
sumed to  be  dead  after  an  absence 
of  five  years  under  Kirby's  Dig., 
§5178.  Goset  v.  Goset,  112  Ark. 
47,  164  S.  W.  Rep.  759. 

30  Flynn  v.  Coffee,  12  Allen,  133. 
But  as  to  mere  rumors,  see  Koster 
v.  Reed,  6  B.  &  C.  19;  Whiteside's 
Appeal,  23  Penn.  St.  114,  117. 

Where  the  real  controversy  be- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


233 


or  that  a  single  letter  has  been  received  from  him,37  within 
the  seven  years,  wholly  rebuts  this  presumption.  While 
modern  facilities  of  intercourse  by  mail  and  telegraph  add 
significance  to  continued  cessation  of  correspondence,  yet, 
on  the  other  hand,  the  presumption  from  absence  itself  is 
weakened  by  modern  facilities  for  travel,38  the  expanse  of 
our  country,  and  the  migratory  habits  of  population.39 

10.  The  Time  of  Presumed  Death. 

The  presumption  of  continuance  of  life  ends  on  the  expira- 
tion of  the  seven  years,  but  whether  life  is  presumed  to  have 
ended  on  that  day  is  another  question.  Where  the  death 
is  presumed  from  circumstances  naturally  pointing  to  a  par- 
ticular period,  it  will  ordinarily  be  a  question  for  the  jury 
to  find  the  date  of  death,40  either  specifically  or  relatively  to 


tween  the  parties  is  whether  an 
absentee  died  before  his  mother, 
and  there  is  conflicting  evidence  as 
to  whether  he  was  heard  from  dur- 
ing the  absence,  a  motion  for  non- 
suit will  be  denied  and  the  question 
will  go  to  the  jury.  Sizer  v.  Severs, 
165  N.  C.  500,  81  S.  E.  Rep.  685. 

37  Smith  v.  Smith,  49  Ala.  158. 
The  letter,  if  stated  still  to  exist, 
should  be  produced,  or  its  absence 
accounted  for.     Brown  v.  Jewett, 
18  N.  H.  230.    Slight  evidence  is 
enough   to   account   for   absence. 
Am.  IJfe  Ins.  Co.  v.  Rosenagle,  77 
Penn.  St.  507,  513. 

38  Watson  v.  England,  14  Sim.  28. 

39  Smith  v.  Smith,  49  Ala.  158. 

40  When  the  fact  of  death  is  con- 
ceded, and  the  inquiry  is  when  did 
it  happen,  the  question  of  presump- 
tions arising  from  the  fact  that  the 
vessel  was  never  heard  of,  is  not 
postponed   to   the   latest   possible 
period,  but  is  a  question  of  reason- 


able probability  in  view  of  the 
known  usual  and  not  necessarily 
longest  time  for  voyages  like  that 
in  question.  Oppenheim  v.  Wolf,  3 
Sandf.  Ch.  571. 

The  presumption  of  death  after 
seven  years'  disappearance  does  not 
fix  the  exact  time  of  the  death, 
which  must  be  the  subject  of  dis- 
tinct proof.  Matter  of  Smith,  77 
N.  Y.  Misc.  76,  136  N.  Y.  Supp. 
825;  Johnson  v.  Sovereign  Camp 
Woodmen  of  World,  163  Mo.  App. 
728,  147  S.  W.  Rep.  510;  Caldwell 
v.  Modern  Woodmen  of  America, 
89  Kan.  11,  130  Pac.  Rep.  642; 
Carpenter  v.  Modern  Woodmen  of 
America,  160  Iowa,  602,  142  N.  W. 
Rep.  411. 

Where  a  person  was  afflicted 
with  a  number  of  disabilities  which 
attend  old  age,  and  was  last  seen 
after  an  earthquake  hi  front  of  his 
residence  which  was  in  a  district 
that  was  presently  swept  by  fire. 


234 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


other  events  material  to  the  cause;  where  a  party  rests  on  the 
seven  years '  presumption,  much  difference  of  opinion  exists, 
and  two  rules  contend  for  control.41 


11.  The  English  Rule. 

The  doctrine  recently  established  in  the  English  courts,42 
and  followed  in  some  American  cases,43  is  that  he  upon  whom 
is  the  burden  of  proof  to  show  either  death  or  survival,  at  a 
particular  time  within  the  seven  years,  must  adduce  distinct 
proof  bearing  on  that  time.44 


the  presumption  of  death  arose 
when  seven  years  had  elapsed  after 
his  disappearance  and  the  facts 
were  sufficient  to  sustain  a  finding 
that  he  died  at  a  certain  date. 
Linneweber  v.  Supreme  Council 
C.  K.  A.,  30  Cal.  App.  315,  158 
Pac.  Rep.  229. 

41  See  paragraph  4,  above. 

Text  cited  in  Barson  v.  Mulligan, 
191  N.  Y.  306,  84  N.  E.  Rep.  75, 
16  L.  R.  A.  (N.  S.)  151. 

The  exact  tune  of  death  will  be 
fixed  at  seven  years  after  the  dis- 
appearance unless  an  earlier  death 
is  proved.  Dickinson  v.  Donovan, 
160  111.  App.  195. 

« In  re  Phene"'s  Trusts,  L.  R.  5 
Ch.  139,  and  cases  cited;  In  re 
Lewes'  Trusts,  L.  R.  6  Ch.  356, 
affi'gL.  R.  HEq.  236. 

«  State  v.  Moore,  11  Ired.  (N.  C.) 
L.  160;  Spencer  v.  Roper,  13  Ired. 
333;  McCartee  v.  Camel,  1  Barb. 
Ch.  455;  see  also  Hancock  v.  Life 
Ins.  Co.,  62  Mo.  26. 

In  the  absence  of  evidence  to  the 
contrary,  there  is  no  presumption 
that  death  occurred  at  any  par- 
ticular time  but  at  the  end  of  the 
period  of  seven  years.  Apitz  v. 


Supreme  Lodge,  K.  &  L.  H.  274 
111.  196,  113  N.  E.  Rep.  63,  L.  R.  A. 
1917,  A  183. 

When  the  time  of  death  is  ma- 
terial, it  cannot  rest  on  presump- 
tion but  must  be  established  by 
proof.  In  re  Bernard,  152  N.  Y. 
Supp.  716,  89  Misc.  705. 

No  presumption  arises  as  to  the 
time  of  death.  The  burden  of 
proof  is  upon  the  party  who  wishes 
to  prove  the  death  at  any  particular 
time  within  the  seven  years.  N.  Y. 
Life  Ins.  Co.  v.  Brame,  112  Miss. 
828,  73  So.  Rep.  806;  Clement  v. 
Knights  of  Maccabees  of  World, 
113  Miss.  392,  74  So.  Rep.  287. 

44  The  grounds  assigned  for  this 
rule  are :  (1)  That  to  presume  death 
upon  the  last  day  of  the  seven 
years  would  be  to  presume  that 
which  would  be  almost  always  con- 
trary to  the  fact;  (2)  That,  if  life 
on  the  last  day  of  the  seven  years  is 
presumed,  death  on  the  day  fol- 
lowing is  extremely  improbable; 
and,  (3)  That  to  allow  the  pre- 
sumption of  continuance  of  life  in  a 
case  where  continuance  of  life  is 
the  main  fact  in  issue,  is  a  differ- 
ent thing  from  allowing  it  where  the 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


235 


12.  The  American  Rule. 

The  rule  more  generally  recognized  hi  the  courts  of  this 
country  is  that  the  principle  which  raises  a  presumption  of 
the  death  of  a  person  absenting  himself  for  seven  years  with- 
out being  heard  from,  furnishes  a  legal  presumption  of  the 
time  of  the  death,  as  well  as  of  the  fact  of  the  death;  for  in  the 
absence  of  such  a  presumption,  the  presumption  would  be 
that  the  person  was  still  alive;  and  this  presumption  of  the 
continuance  of  life  ceases  only  when  it  is  overcome  by  the 
countervailing  presumption  of  death  arising  at  the  end  of 
seven  years;  but  the  presumption  of  death  so  arising  cannot 
operate  retrospectively  to  indicate  a  death  previous  to  the 
time  it  arose.  In  other  words,  the  legal  presumption  of  life 
is  sufficient,  in  the  absence  of  all  other  evidence,  to  sustain 
an  allegation  of  existence  at  any  time  during  the  period 
that  the  presumption  lasts,  viz.,  until  the  lapse  of  the  seven 
years.45  And  therefore  the  party  alleging  that  death  oc- 


continuance  is  only  incidentally  in- 
volved. The  English  rule  is  sup- 
ported in  this  country  by  the  opin- 
ions of  RUFFIN,  Ch.  J.,  NASH,  J., 
and  WALWORTH,  Chan.,  in  the 
cases  above  cited,  and  that  of  Dr. 
Wharton  (2  Whart.  Ev.,  §  1276), 
who  deems  it  supported  by  the  pre- 
ponderance of  American  authority. 
It  is  assumed,  also,  by  Mr.  Bishop, 
1  Bish.  Mar.  &  D.,  §  456. 

There  is  no  presumption  that  a 
person  was  living  at  any  particular 
time  during  his  seven  years'  unex- 
plained absence.  Security  Bank  v. 
Equitable  Life  Assoc.  Soc.,  112 
Va.  462,  71  S.  E.  Rep.  647,  35 
L.  R.  A.  N.  S.  159,  Ann.  Gas. 
1913,  B  836;  Evans  v.  Stewart,  81 
Va,  724. 

The  presumption  of  the  death  of 
an  absentee  who  has  not  been  heard 
from  for  seven  years  is  only  that 


he  is  then  dead,  not  that  he  died  at 
any  particular  time  during  that 
period.  In  the  absence  of  anything 
indicating  an  earlier  death,  it  can- 
not be  found  that  death  occurred 
prior  to  the  lapse  of  the  entire 
period.  Haddock  v.  Meagher,  163 
N.  W.  Rep.  (Iowa)  417. 

The  fact  of  death  being  estab- 
lished by  the  presumption  from  ab- 
sence for  seven  years,  a  letter  writ- 
ten by  decedent  at  the  time  of  his 
disappearance  showing  his  inten- 
tion to  immediately  commit  suicide 
is  competent  evidence  as  part  of 
the  res  gestce  to  fix  the  date  of  his 
death.  Benjamin  v.  District  Grand 
Lodge  No.  4,  I.  0.  B.  B.,  171  Cal. 
260,  152  Pac.  Rep.  731. 

45  This  doctrine  is  fully  supported 
by  the  following  decisions:  Mont- 
gomery v.  Beavans,  1  Sawyer,  653, 
s.  c.,  4  Am.  L.  T.  U.  S.  Cts.  202. 


236 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


curred  before  the  expiration  of  that  period  has  the  burden  of 


FIELD,  .!.;  Eagle's  Case,  3  Abb.  Pr. 
218,  s.  c.,  4  Bradf.  117,  BRADFORD, 
SUIT.;  Ex'rs  of  Clarke  v.  Canfield, 
15  N.  J.  Ch.  (2  McCarter),  119, 
GREEN,  Chan.;  Whiting  v.  Nicholl, 
46  111.  230,  241,  BBBESB,  Ch.  J.; 
Barr  v.  Sim,  4  Whart.  150. 171,  and 
Bradley  v.  Bradley,  4  Id.  173, 
GIBSON,  Ch.  J.;  Smith  v.  Knowlton, 
11  N.  H.  191,  196,  PARKER,  Ch.  J.; 
Tilly  v.  TiUy,  2  Bland  (Md.)  436, 
444,  BLAND,  Chan.  The  same  prin- 
ciple is  also  recognized,  though  not 
decisively,  in  Whiteside's  Appeal 
23  Penn.  St.  114,  117,  BLACK, 
Ch.  J.,  and  Stouvenel  v.  Stephens, 
2  Daly,  319,  DALY,  Ch.  J.;  and 
Gilleland  v.  Martin,  3  McLean,  490, 
LEAVITT,  J.  In  the  earliest  English 
cases  it  seems  to  have  been  a  ques- 
tion of  the  weight  of  testimony; 
and,  in  1560,  it  was  held  that,  on 
evidence  of  seven  years'  absence, 
without  being  heard  of,  and  on 
proof  of  belief  hi  the  family,  of 
death,  death  might  be  presumed. 
Thorne  v.  Rolff,  Dyer,  185a,  s.  c., 
more  fully,  Bendloe,  86.  In  1624, 
the  question  arose  as  to  who  had 
the  burden  of  proof,  as  to  whether 
absentees,  shown  once  to  have  been 
in  life,  were  still  alive,  and  it  was 
held  that  the  burden  was  on  the 
plaintiff  asserting  then*  death,  for 
it  having  been  shown  that  they  were 
once  in  life,  they  should  be  pre- 
sumed living  till  the  contrary  was 
shown.  Throgmorton  v.  Walton, 
2  Rol.  R.  461.  Or,  in  the  words  of 
Lord  ELLENBOROUGH,  "where  the 
issue  is  upon  the  life  or  death  of  a 
person  once  shown  to  be  living,  the 


proof  of  the  fact  lies  on  the  party 
who  asserts  the  death."  Wilson  v. 
Hodges,  2  East,  312.  See  also  10 
Viner's  Ab.  298,  Estate,  R.  a.  4. 
After  the  decision  in  Throgmorton 
v.  Walton,  the  statute  19  Car.  II, 
as  to  life  estates  was  passed,  see 
paragraph  6,  above,  directing 
judges  to  instruct  the  jury  that 
seven  years'  absence,  etc.,  raised  a 
legal  presumption  of  death.  The 
reasons  supporting  the  American 
and  earlier  English  rule  are:  (1) 
That  the  old  common-law  presump- 
tion of  continuance  of  life  lasts  until 
intercepted  by  the  statutory  or 
judicial  seven  years'  limit,  or  by 
evidence  pointing  to  death  at  a 
particular  tune.  (2)  Death  is  pre- 
sumed at  the  end  of  seven  years, 
not  for  the  purpose  of  fixing  on  the 
true  date,  but  because  the  true 
date  is  inscrutable.  The  presump- 
tions of  continuance  of  life,  and  of 
death  after  seven  years,  are  pre- 
sumptions founded  on  ignorance, 
and  are  not  to  be  tested  by  the  ques- 
tion whether  the  artificially  desig- 
nated day  is  probably  the  true  one. 
Like  other  presumptions  founded 
on  ignorance,  the  object  is  merely 
certainty,  because  truth  cannot  be 
ascertained.  (3)  Because  the  true 
date  is  unascertainable,  it  becomes 
necessary  to  fix  a  day  on  which 
right  shall  be  deemed  to  devolve, 
as  if  actual  death  on  that  day  were 
known.  (4)  Without  this  rule, 
where  proof  of  the  actual  date  can- 
not be  made,  the  property  must 
either  remain  undistributed,  or  be 
distributed  among  the  contestants, 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


237 


proving  it.46    The  presumption  that  death  occurs  at  that 


not  according  to  any  settled  prin- 
ciple, but  according  to  the  accident 
of  possession,  or  as  one  or  the  other 
claimant  happens  to  be  the  moving 
party  in  court.  Apart  from  these 
considerations  of  theory  and  policy, 
the  question  resolves  itself  into 
this,  viz.,  is  the  legal  presumption, 
that  a  person  once  shown  to  be 
living  continues  to  exist  until  the 
contrary  is  indicated,  sufficient  to 
stand  as  a  prima  facie  case  in  favor 
of  one  who  assumes  the  affirma- 
tive? In  some  other  cases,  the 
presumption  of  the  continuance  of 
a  fact  shown  once  to  have  existed 
is  prima  facie  proof  hi  favor  of  him 
who  alleges  the  fact,  as,  for  in- 
stance, in  case  of'  indebtedness, 
partnership,  insanity,  etc.  It  may 
be  observed  that  the  law  constantly 
acts  on  this  presumption  of  life,  in 
service  of  process  on  absentees  by 
advertisement.  Where  a  person 
leaves  his  home  and  place  of  busi- 
ness for  temporary  purposes  and 
is  not  seen,  heard  of,  or  known  to 
be  living  for  the  term  of  seven 
years  thereafter,  he  is  presumed  to 
be  dead.  But  in  such  case  the  pre- 
sumption of  life  continues  and  the 
presumption  of  death  does  not 
arise  until  the  expiration  of  seven 
years  from  the  tune  of  disappear- 
ance, unless  there  is  evidence  that 
the  person  was,  at  some  particular 
time,  hi  contact  with  a  specific  peril 
as  a  circumstance  to  quicken  the 
period  of  time.  In  re  Mutual 
Benefit  Company's  Petition,  174 
Perm.  St.  1,  34  Atl.  Rep.  283. 
One  whose  absence  is  unexplained 


is  presumed  to  be  living  until  the 
expiration  of  seven  years.  Vree- 
land  v.  Vreeland,  78  N.  J.  Eq.  256, 
79  Atl.  Rep.  336, 34  L.  R.  A.  (N.  S.) 
940. 

If  a  person  is  presumed  to  be 
dead  after  seven  years'  absence  the 
tune  of  death  will  be  fixed  as  at  the 
end  of  that  period.  Baker  v.  Fi- 
delity Title  &  Trust  Co.,  55  Pa. 
Super.  Ct.  15. 

A  person  is  presumed  to  be  alive 
until  the  contrary  is  proved.  After 
an  absence  of  seven  years  without 
being  heard  of  the  presumption  of 
life  ceases  and  the  presumption 
of  death  takes  its  place.  The  tune 
of  death  is  fixed  at  the  expiration 
of  the  seven-year  period  unless  an 
earlier  death  is  proved  or  found  by 
the  jury  from  the  circumstances. 
Donovan  v.  Major,  253  111.  179,  97 
N.  E.  Rep.  231. 

One  who  has  disappeared  for  less 
than  seven  years  will  be  presumed 
to  be  living.  Reid  v.  State,  168 
Ala.  118,  53  So.  Rep.  254. 

One  who  is  absent  less  than 
seven  years  is  presumed  to  be  alive, 
and  the  burden  of  proof  that  he  is 
dead  rests  upon  the  beneficiary 
who  sues  for  the  proceeds  of  a  life 
policy.  Springmeyer  v.  Sovereign 
Camp,  Woodmen  of  the  World, 
163  Mo.  App.  338,  143  S.  W.  Rep. 
872. 

«  Schaub  v.  Griffin,  84  Md.  557, 
36  Atl.  Rep.  443;  Johnson  v.  Meri- 
thew,  80  Me.  Ill,  6  Am.  St.  Rep. 
162,  13  Atl.  Rep.  132. 

The  decree  of  the  surrogate  is- 
suing letters  of  administration  on 


238  ACTIONS   BY   AND   AGAINST  HEIRS   AND 

time  fixes  the  rights  dependent  on  death,  until  evidence  to 
the  contrary  appears.  Hence  an  executor  is  chargeable  with 
interest  for  not  paying  over  to  the  legatee  entitled  by  reason 
of  the  presumable  death;  it  is  not  necessary  that  the  pre- 
sumption should  be  judicially  adjusted  in  order  to  fix  the 
rights  of  parties.47 

13.  Survivorship  in  Common  Casualty. 

Where  death  of  several  is  caused  by  one  catastrophe, 
the  burden  of  proof  is  on  him  who  claims  that  one  survived 
the  other,  to  give  some  evidence  rendering  survival  probable. 
The  law  neither  makes  nor  permits  a  presumption  that  one 
survived  the  other  from  the  mere  fact  of  age  or  sex;  but  if 
there  is  evidence  that  the  prolongation  of  life  depended  on 
struggle  or  endurance,  then  the  relative  strength  may  be 
relevant,  and  in  such  case,  as  well  as  where  there  is  even 
slight  evidence  that  one  was  seen  alive  after  the  other  may 
be  presumed  to  have  been  dead,  the  question  may  be  one 
for  the  jury.48 

the  estate  of  one  who  is  presumed  Am.  St.  Rep.  162,    13  Atl.  Rep. 

to  be  dead  after  an  absence  of  seven  132. 

years,  is  not  an  adjudication  as  to  In  the  case  of  two  or  more  per- 

the  exact  time  of  the  death.    Wil-  sons  dying  in  a  common  disaster 

liams  v.  Post,  158  N.  Y.  App.  Div.  there  is  no  presumption  of  sur- 

818,  143  N.  Y.  Supp.  1027.  vivorship     nor    of     simultaneous 

47  Whiteside's  Appeal,  23  Perm,  death.    Dunn  v.  New  Amsterdam 
St.  114,  117.  Casualty  Co.,  141  N.  Y.  App.  Div. 

It  is  not  within  the  jurisdiction  478,  126  N.  Y.  Supp.  229;  Hilden- 

of  the  Surrogate's  Court  to  pre-  brandt  v.  Ames,  27  Tex.  Civ.  App. 

sume  the  death  of  any  person  other  377,  66  S.  W.  Rep.  128;  United 

than  the  person  whose  estate  is  States  Casualty  Co.  v.  Kacer,  169 

being    administered.      Matter    of  Mo.  App.  301,  69  S.  W.  Rep.  370, 

Matthews,  75  N.  Y.  Misc.  449,  136  92  Am.  St.  Rep.  641,  58  L.  R.  A. 

N.  Y.  Supp.  636.  436;  Johnson  v.  Merithew,  80  Me. 

48  Moehring  v.  Mitchell,  1  Barb.  Ill,   13   A.  132,  6  Am.  St.  Rep. 
Ch.  264;  Ommaney  v.  Stilwell,  23  162. 

Beav.  328;  Robinson  v.  Gallier,  2  The  question  of  survivorship  in 

Woods,  178;  Kansas,  etc.,  Ry.  Co.  common  disasters  cannot  be  deter- 

v.  Miller,  2  Col.  T.  442,  464;  John-  mined   without  some   actual  evi- 

son  v.  Merithew,  80  Me.   Ill,  6  dence.     Matter  of  Herrmann,  75 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


239 


13a.  Presumption  as  to  Descendants. 
But  the  courts  do  not  adopt  a  further  presumption  that  a 

Sav.  Bank,  92  N.  Y.  App.  Div.  529, 
87  N.  Y.  Supp.  54,  aff'd  in  179 
N.  Y.  594,  72  N.  E.  Rep.  1141. 

When  testator  and  legatee  perish 
in  a  common  disaster  the  burden 
of  proof  is  on  those  who  claim 
under  the  legatee  to  establish  that 
the  latter  survived  the  testator. 
Young  Women's  Christian  Home  v. 
French  187  U.  S.  401,  23  Super. 
Ct.  184,  47  L.  ed.  233;  Matter  of 
Willbor,  20  R.  I.  126,  78  Am.  St. 
Rep.  842,  37  Atl.  Rep.  634,  51  L. 
R.  A.  863,  note. 

When  the  intestate  and  the  heir 
perish  in  the  same  disaster  the 
burden  of  proof  of  survivorship  is 
on  those  claiming  through  the  heir. 
Ehle's  Est.,  73  Wis.  445,  41  N.  W. 
Rep.  627. 

An  inebriate  who  was  suffering 
from  several  organic  diseases  and 
whose  physical  condition  was  such 
that  a  physician  certified  he  could 
not  possibly  live  longer  than  one 
year,  disappeared  and  was  un- 
heard of  for  seventeen  years — Held 
by  the  court  that  he  predeceased 
his  father  who  died  four  years 
after  the  son's  disappearance. 
Cambrelleng  v.  Purton,  125  N.  Y. 
610,  26  N.  E.  Rep.  907. 

Evidence  that  one  of  two  dead 
bodies  found  in  the  woods  was  still 
warm  and  limp  will  be  sufficient 
to  allow  the  court  to  find  that  it 
was  the  body  of  the  survivor. 
Broome  v.  Duncan  (Miss.),  29  So. 
Rep.  394. 

There  is  no  presumption  of 
simultaneous  death,  but  because 


N.  Y.  Misc.  599,  136  N.  Y.  Supp. 
944. 

One  who  claims  survivorship 
must  prove  it.  Newell  v.  Nichols, 
75  N.  Y.  78,  31  Am.  Rep.  424. 

Those  whose  claim  depends  upon 
the  survivorship  of  one  of  two  per- 
sons perishing  in  a  common  dis- 
aster must  prove  such  survivor- 
ship. Southwell  v.  Gray,  35  N.  Y. 
Misc.  740,  72  N.  Y.  Supp.  342; 
Fuller  v.  Linzee,  135  Mass.  468; 
Middeke  v.  Balder,  198  111.  590,  64 
N.  E.  Rep.  1002,  92  Am.  St.  Rep. 
284,  59  L.  R.  A.  653. 

Where  property  rights  are  to  be 
disposed  of  it  will  be  presumed  that 
the  deaths  of  two  or  more  persons 
who  perished  in  a  common  dis- 
aster were  simultaneous.  St.  John 
v.  Andrews  Institute,  191  N.  Y. 
254,  83  N.  E.  Rep.  981,  14  Ann. 
Cas.  708;  Newell  v.  Nichols,  75 
N.  Y.  78,  31  Am.  Rep.  424;  Matter 
of  Willbor,  20  R.  I.  126, 37  A. 
634,  78  Am.  St.  Rep.  842,  51 
L.  R.  A.  863;  Matter  of  Gerdes, 
50  N.  Y.  Misc.  88, 100  N.  Y.  Supp. 
440;  Dunn  v.  New  Amsterdam 
Casualty  Co.  (dissenting  opinion), 
141  N.  Y.  App.  Div.  478,  483,  126 
N.  Y.  Supp.  229;  Young  Women's 
Christian  Home  v.  French,  187 
U.  S.  401,  23  Super.  Ct.  184,  47 
L.  ed.  233;  Supreme  Council 
R.  A.  v.  Kacer,  96  Mo.  App.  93, 
69  S.  W.  Rep.  671. 

The  burden  of  proof  of  survivor- 
ship is  on  him  whose  claim  arises 
by  virtue  of  the  survivorship. 
Farrelly  v.  Emigrant  Industrial 


240 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


of  the  absence  of  evidence  or  pre- 
sumption to  the  contrary,  property 
rights  are  disposed  of  as  if  death 
occurred  at  the  same  time.  Matter 
of  Mclnnes,  119  N.  Y.  App.  Div. 
440,  104  N.  Y.  Supp.  147. 

There  is  no  presumption  of  sur- 
vivorship as  each  case  must  be  de- 
termined on  its  own  facts.  The 
burden  of  proof  of  survivorship 
rests  upon  the  party  asserting  it. 
Aley  v.  Missouri  Pac.  R.  Co.,  211 
Mo.  App.  460,  111  S.  W.  Rep. 
102. 

Where  the  insured  and  the  bene- 
ficiary under  a  life  insurance  policy 
die  in  a  common  disaster  the  bur- 
den of  proof  is  on  him  who  claims 
under  the  beneficiary  to  establish 
that  the  beneficiary  survived  the 
insured.  Dunn  v.  New  Amsterdam 
Casualty  Co.,  141  N.  Y.  App.  Div. 
478,  126  N.  Y.  Supp.  229;  Hilden- 
brandt  v.  Ames,  27  Tex.  Civ.  App. 
377,  66  S.  W.  Rep.  128;  Males  v. 
Sovereign  Camp  Woodmen  of  the 
World,  30  Tex.  Civ.  App.  184,  70 
S.  W.  Rep.  108;  Supreme  Council 
R.  A.  v.  Kacer,  96  Mo.  App.  93, 
69  S.  W.  Rep.  671;  Middeke  v. 
Balder,  198  111.  590,  64  N.  E.  Rep. 
1002,  92  Am.  St.  Rep.  284,  59 
L.  R.  A.  653,  69  S.  W.  Rep.  671; 
Fuller  v.  Linzee,  135  Mass.  468; 
Southwell  v.  Gray,  35  N.  Y.  Misc. 
740,  72  N.  Y.  Supp.  342. 

Contrary  view,  that  the  burden 
of  proof  is  on  him  who  claims  under 
the  insured  to  establish  that  the 
insured  survived  the  beneficiary. 
Cowman  v.  Rogers,  73  Md.  403, 
21  A.  64,  10  L.  R.  A.  550;  United 
States  Casualty  Co.  v.  Kacer,  169 
Mo.  App.  301,  69  S.  W.  Rep.  370, 


92  Am.  St.  Rep.  641,  58  L.  R. 
A.  436. 

The  Codes  of  two  of  our  States 
follow  the  rule  of  the  civil  law  and 
provide  for  a  presumption  of  sur- 
vivorship. In  California,  subd.  40, 
§  1963,  Code  Civ.  Pro.,  providing 
for  a  presumption  of  survivorship 
may  be  relied  on  when  there  is  a 
total  lack  of  evidence  as  to  which 
of  two  persons  who  perished  in  a 
wreck  died  first.  Matter  of  Louck, 
160  Cal.  551,  117  Pac.  Rep.  673, 
Ann.  Cas.  1913,  A  868;  Grand 
Lodge  A.  O.  U.  W.  v.  Miller,  8 
Cal.  App.  25,  96  Pac.  Rep. 
22. 

In  Louisiana,  under  Rev.  Civ. 
Code,  Art.  936,  where  a  mother 
fifty-two  years  old  and  a  daughter 
thirty-five  years  old  perish  in  a 
common  disaster  the  daughter  will 
be  presumed  to  have  survived. 
Langles'  Succ.,  105  La.  39,  29  So. 
Rep.  739. 

Where  two  persons  disappear 
and  are  unheard  of  for  over  seven 
years  there  is  no  presumption  that 
one  survived  the  other,  even  though 
one  was  heard  of  later  than  the 
other.  Schaub  v.  Griffin,  84  Md. 
557,  36  App.  Div.  443. 

The  law  is  that  when  two  or  more 
persons  perish  in  a  common  dis- 
aster there  is  no  presumption 
under  the  common  law,  of  survivor- 
ship; that  if  survivorship  is  claimed 
it  must  be  proved,  and  this  rule 
would  apply  whether  the  common 
disaster  was  a  wreck  or  accident 
on  land  or  sea  or  the  murder  of 
several  persons  at  practically  the 
same  time.  Wall  v.  Pfanschmidt, 
265  III.  180,  106  N.  E.  Rep.  785, 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


241 


man  presumed  to  be  dead  left  no  children  or  descendants.49 
And  even  where  a  man  leaves  the  State  unmarried  and  child- 
less, and  has  not  been  heard  from  for  seven  years,  it  will 
not  be  presumed  that  he  died  childless,  and  the  party  alleg- 
ing such  fact  must  prove  it.50 


L.  R.  A.  1915,  C.  328,  Ann.  Gas., 
1916,  A.  674. 

Where  husband  and  wife  perished 
in  a  common  disaster,  there  is  no 
presumption  that  the  wife  sur- 
vived the  husband.  In  re  Fowles, 
176  App.  Div.  637, 163  N.  Y.  Supp. 
873. 

When  two  persons  perish  in  a 
common  disaster,  there  is,  in  the 
absence  of  all  proof  of  the  fact,  no 
presumption  of  survivorship  or  of 
simultaneous  death  and  in  the 
absence  of  evidence  the  fact  is  as- 
sumed to  be  unascertainable.  Mc- 
Gowin  v.  Menken,  177  App.  Div. 
841,  164  N.  Y.  Supp.  953. 

49  Posey  v.  Hanson,  10  App.  D.  C. 
496. 

It  is  to  be  presumed  that  a  per- 
son, proved  to  be  dead,  left  heirs. 
Modern  Woodmen  of  America  v. 
Gromley,  41  Okla.  532,  139  Pac. 
Rep.  306,  L.  R.  A.  1915,  B.  728, 
Ann.  Gas.  1915,  C.  1063;  Harvey 
v.  Thornton,  14  111.  217. 

There  is  no  presumption  that 
one  who  has  been  absent  for  seven 
years  without  being  heard  of,  left 
no  children  or  descendants.  Emer- 
son v.  White,  29  N.  H.  482. 

There  is  no  presumption  that 
one  who  has  died  left  no  descend- 
ants. Hornberger  v.  Miller,  28 
N.  Y.  App.  Div.  199,  50  N.  Y. 
Supp.  1079,  aff'd  163  N.  Y.  578. 
57  N.  E.  Rep.  1112. 


"Still  v.  Hutto,  48  S.  C.  415, 
26  S.  E.  Rep.  713.  "Haggard  and 
his  wife,  it  may  be  true,  have  con- 
cealed themselves  and  the  children, 
but  the  statute,  which  manifestly 
refers  only  to  persons  having  voli- 
tion and  the  right  of  free  locomo- 
tion, does  not  create  the  pre- 
sumption of  the  death  of  children 
incapable,  by  reason  of  their  ten- 
der age,  of  'absenting'  themselves 
from  the  State  or  of  'concealing' 
themselves  within  it.  The  burden 
of  establishing  the  death  of  the 
children  without  the  aid  of  the 
presumption  afforded  by  the  stat- 
ute, has  not  been  met  and  sustained 
by  the  plaintiffs."  Manley  v.  Pat- 
tison,  73  Miss.  417,  420-421,  19 
So.  Rep.  236. 

The  facts  that  one  who  was  un- 
married disappeared,  and  there- 
after was  unheard  of  for  thirty- 
seven  years,  and  during  that  time 
no  one  appeared  purporting  to  be 
his  issue  to  make  claim  to  lands  in 
which  he  had  an  interest,  con- 
sidered by  the  court  to  raise  the 
presumption  of  death  without  issue. 
Barson  v.  Mulligan,  191  N.  Y. 
306,  84  N.  E.  Rep.  75,  16  L.  R.  A. 
(N.  S.)  151. 

A  person  unmarried  and  child- 
less, who  disappears  for  seven  years 
without  being  heard  of  will  be  pre- 
sumed to  have  died  unmarried  and 
childless,  unless  the  contrary  is 


242 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


H.  MARRIAGE 

14.  Burden  of  Proof,  and  Presumptions. 

Marriage  is  not  presumable  from  marriageable  age  and 
lapse  of  time,51  and  proof  that  a  woman  was  a  wife  during  a 
given  period  does  not  raise  a  presumption  of  marriage  at  any 
particular  earlier  date; 52  but,  on  the  other  hand,  the 
court  will  not,  in  the  absence  of  evidence,  presume  that  one 
never  married.  The  burden  of  proof  is  on  him  who  asserts 
either  marriage  or  the  contrary.53  For  the  purposes  of  ac- 
tions considered  in  this  chapter,  it  may  be  presumed  that 
every  competent  couple  who  live  together  ostensibly  in  the 


proved.  Matter  of  Smith,  77  N.  Y. 
Misc.  76,  136  N.  Y.  Supp.  825. 

One  who  left  home  when  he  was 
between  seventeen  and  twenty-one 
years  of  age,  and  was  unmarried  at 
the  time,  and  thereafter  was  never 
heard  from  again,  will  be  presumed 
to  have  died  seven  years  after  his 
departure  and  to  have  been  un- 
married at  the  time  of  his  death. 
Wells  v.  Margraves  (Tex.  Civ. 
App.),  164  S.  W.  Rep.  881. 

"Erskine  t;.  Davis,  25  111.  251, 
256. 

"Id. 

"Where  a  marriage  has  been 
shown  in  evidence,  the  law  raises  a 
strong  presumption  of  its  legality, 
casting  the  burden  of  proof  upon 
the  person  attacking  it,  and  re- 
quiring him  to  show  that  it  is  il- 
legal and  void."  In  re  Pusey,  173 
Cal.  141,  159  Pac.  Rep.  433. 

53  Doe  v.  Deakin,  3  Carr.  &  P. 
402. 

The  burden  of  proof  of  a  mar- 
riage rests  upon  the  party  assert- 
ing it.  In  re  Davis,  204  Pa.  602, 
54  Atl.  Rep.  475. 


One  who  claims  a  marriage  to 
have  been  illegal  has  the  burden 
of  proving  such  claim.  Senge  v. 
Senge,  106  111.  App.  140;  Cash  v. 
Cash,  67  Ark.  278,  54  S.  W.  Rep. 
744;  Schmisseur  v.  Beatrie,  147 
111.  210,  35  N.  E.  Rep.  525;  Frank- 
lin v.  Lee,  30  Ind.  App.  31,  62  N.  E. 
Rep.  78;  Leach  v.  Hall,  95  Iowa, 
611,  64  N.  W.  Rep.  790. 

Where  one  party  proves  that  the 
marriage  was  regular,  the  burden 
shifts  to  the  opponent  to  prove 
that  it  was  void.  Goset  v.  Goset, 
112  Ark.  47,  164  S.  W.  Rep.  759, 
L.  R.  A.  1916,  C.  707. 

One  who  rests  on  the  fact  that  a 
marriage  was  dissolved  must  prove 
it.  Wilson  v.  Allen,  108  Ga.  275, 
33  S.  E.  Rep.  975. 

The  burden  of  proof  that  an  un- 
married man,  who  is  presumed  to 
be  dead  by  reason  of  his  disappear- 
ance for  seven  years,  was  married 
when  he  died  is  upon  the  party  as- 
serting that  he  was  married.  Duff 
v.  Duff,  156  Mo.  App.  247,  137 
S.  W.  Rep.  909. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


243 


way  of  husband  and  wife,  are  in  reality  such.54  This  pre- 
sumption, for  which  considerations  of  public  order  and  de- 
cency are  a  sufficient  support,  is  aided  by  the  presumption 
of  innocence  in  favor  of  a  party  to  the  marriage  claiming 
under  it,  and  is  greatly  strengthened  when  the  only  question 
depending  is  the  legitimacy  of  offspring.  The  presumptions 
in  favor  of  marriage  increase  in  strength  with  the  prolonga- 
tion of  the  matrimonial  cohabitation.65 


"  1  Bish.  on  Mar.  &  D.,  §§  434, 
443. 

Proof  that  a  f  ormer  marriage  had 
been  solemnized  in  a  foreign  coun- 
try in  a  church,  by  a  person  as- 
suming the  office  of  priest  or  minis- 
ter, raises  the  presumption  that 
the  marriage  was  in  accordance 
•with  the  laws  of  the  country  and 
valid;  and,  especially  where  fol- 
lowed by  cohabitation,  casts  upon 
the  person  attacking  its  validity 
the  burden  of  showing  that  the 
law  required  some  further  act  or 
fact.  Lanctot  v.  State,  98  Wis.  136, 
73  N.  W.  Rep.  575. 

Where  a  marriage  is  proved  it 
will  be  presumed  that  the  parties 
were  legally  capable.  Barber  v. 
People,  203  111.  543,  68  N.  E.  Rep. 
93. 

The  presumption  is  that  a  mar- 
riage once  established  is  valid. 
Haile  v.  Hale,  40  Okla.  101,  135 
Pac.  Rep.  1143. 

Although  the  proofs  establish 
such  cohabitation,  repute,  etc.,  as 
would  ordinarily  raise  a  presump- 
tion of  marriage,  such  presumption 
will  not,  however,  arise  where  one 
of  the  parties  is  under  such  legal 
disability  as  would  prevent  mar- 
riage to  the  other.  In  re  Morris, 
157  N.  Y.  Supp.  472,  92  Misc.  630. 


"Every  marriage  is  presumed1  to 
be  valid,  but  the  strength  of 
that  presumption  depends  on  the 
circumstances  of  each  particular 
case.''  Schubert  v.  Barnholt,  158  N. 
W  .  Rep.  (Iowa)  662. 

55 1  Bish.  on  Mar.  &  D.,  §  458, 
and  cases  cited.  Rockcastle  Min- 
ing, etc.,  Co.  ».  Baker,  167  Ky.  66, 
179  S.  W.  Rep.  1070. 

The  presumption  in  favor  of  a 
marriage  becomes  stronger  as  time 
goes  on.  Matter  of  Picken,  163 
Pa.  14, 29  Atl.  Rep.  875, 25  L.  R.  A. 
477;  Pittinger  v.  Pittinger,  28 
Colo.  308,  64  Pac.  Rep.  195,  89 
Am.  St.  Rep.  193;  Nixon  v.  Wichita 
Land,  etc.,  Co.,  84  Tex.  408,  19 
S.  W.  Rep.  560. 

Where  a  person  marries  a  second 
time  the  presumption  is  that  it  is 
valid  and  that  her  first  husband  is 
dead  or  that  the  former  marriage 
was  legally  dissolved.  Goset  v. 
Goset,  112  Ark.  47,  164  S.  W. 
Rep.  759,  L.  R.  A.  1916,  C.  707. 

A  marriage  once  established  will 
be  presumed  to  continue.  Nelson 
v.  Jones,  245  Mo.  App.  579,  151 
S.  W.  Rep.  80. 

The  longer  parties  continue  to 
maintain  the  relation  of  man  and 
wife,  the  stronger  is  the  inference  in 
support  of  a  contract  of  marriage. 


244 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


15.  Direct  Evidence  of  Marriage. 

Marriage  may  be  proved  either  by  evidence  of  the  con- 
tract which  constitutes  it  (sometimes  called  evidence  of 
actual  marriage),  or  by  evidence  of  the  status,  or  matrimo- 
nial condition  in  life,  of  which  that  contract  is  the  foundation 
(sometimes  called  de  facto  or  presumptive  marriage).  There 
is,  however,  but  one  kind  of  marriage,  and  the  difference  is 
hi  the  evidence  by  which  the  relation  is  proved.  To  prove 
the  contract,  it  is  sufficient  to  prove  an  unconditional  agree- 
ment of  marriage  hi  the  present,  as  distinguished  from  an 
executory  agreement  to  marry,  if  intended  by  the  parties  to 
constitute  them  husband  and  wife,56  though  without  solem- 


Davidson  v.  Ream,  161  N.  Y.  Supp. 
73,  97  Misc.  89. 

Where  it  appears  that  through  a 
long  course  of  years  a  man  lived  and 
recognized  a  woman  as  his  wife  in 
every  way  that  a  man  ordinarily 
recognizes  a  woman  as  his  wife, 
the  evidence  is  sufficiently  pre- 
sumptive to  establish  that  some- 
where and  somehow  the  parties 
were  legally  united  either  by  con- 
sent or  ceremony  as  the  local  laws 
required.  Miller  v.  Miller,  76 
W.  Va.  352,  85  S.  E.  Rep.  542. 

Although  a  man  and  woman  had 
maintained  intimate  relations  for 
a  long  period  of  time  and  as  a 
result  children  were  born  which 
the  man  had  on  various  occasions 
recognized  as  his  own,  still  the 
fact  of  marriage  was  not  estab- 
lished in  the  absence  of  proof  that 
the  man  had  ever  recognized  the 
woman  as  his  wife  or  had  ever  co- 
habited with  her  in  a  common 
dwelling.  In  re  Fuller,  250  Pa.  78, 
95  Atl.  Rep.  382. 

The  presumption  of  marriage 
when  it  once  arises  is  a  strong  one, 


but  is  rebuttable.  In  re  Rein- 
hardt,  160  N.  Y.  Supp.  S28,  95 
Misc.  413. 

58  Hill  r.  Burger,  3  Bradf.  432; 
Steuart  v.  Robertson,  L.  R.,  2  Sc. 
App.  494,  s.  c.,  13  Moak's  Eng. 
165;  McClurg  v.  Terry,  21  N.  J.  Eq. 
(6  C.  E.  Green)  225.  Whether 
the  marriage  relation  exists  is  al- 
ways a  matter  of  evidence,  and 
may  be  proved  by  records  or  by 
any  other  evidence  sufficient  to 
establish  the  fact;  and  if  it  be 
shown  that  the  parties  intending 
marriage  have  accepted  each  other 
as  husband  and  wife  the  contract 
will  be  enforced.  Elzas  v.  Elzas, 
171  111.  632,  49  N.  E.  Rep.  717. 

•'The  contract  of  marriage  is 
something  more  than  a  mere  civil 
agreement  between  the  parties, 
the  existence  of  which  affects  only 
themselves.  It  is  the  basis  of  the 
family,  and  its  dissolution  as  well 
as  its  formation  is  a  matter  of 
public  policy  in  which  the  body  of 
the  community  is  deeply  interested 
and  it  is  to  be  governed  by  other 
considerations  than  those  which 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


245 


nization,57  or  witnesses; 58  and  proof  of  cohabitation  is  not 


obtain  with  regard  to  any  ordinary 
civil  contract  inter  partes."  Barker 
t>.  Barker,  151  N.  Y.  Supp.  811,  88 
Misc.  300.  See  also  Levey  v. 
Levey,  150  N.  Y.  Supp.  610,  88 
Misc.  315. 

"Excepted  from  the  general  rule 
that  a  marriage,  valid  according 
to  the  law  of  the  state  or  country 
where  it  is  celebrated,  is  valid 
everywhere,  are  marriages  pro- 
hibited from  motives  of  public 
policy  by  the  public  law  of  the 
state  or  country  in  which  they  are 
questioned."  People  v.  Steere,  184 
Mich.  556,  151  N.  W.  Rep.  617. 

In  no  event  can  a  marriage  which 
is  not  absolutely  void,  but  merely 
voidable,  be  attacked  in  equity  by 
the  heirs  of  a  deceased  spouse  after 
the  death  of  the  other  spouse. 
Henderson  v.  Ressor,  265  Mo.  718, 
178  S.  W.  Rep.  175. 

A  marriage  to  be  held  invalid, 
though  valid  where  celebrated, 
must  violate  some  distinctive  policy 
of  the  State  or  country  of  the 
domicile,  such  as  laws  against 
incest,  polygamy  or  miscegenation. 
Henderson  v.  Ressor,  265  Mo.  718, 
178  S.  W.  Rep.  175. 

The  rule  that  a  marriage  valid 
where  solemnized  is  valid  every- 
where has  its  exceptions  where  un- 
usual circumstances  would  render 
its  application  inequitable  or  con- 
trary to  a  declared  public  policy  or 


to  good  morals.  Hall  v.  Industrial 
Commission,  165  Wis.  364,  162 
N.  W.  Rep.  312. 

Consent  is  necessary  to  the 
validity  of  the  marriage  contract. 
The  minds  of  the  parties  must 
meet  in  one  common  intention. 
Mere  words,  without  the  intention 
corresponding  therewith  will  not 
make  a  marriage  contract;  but  the 
words  and  acts  are  evidence  of 
such  intention,  and  it  must  be 
shown  clearly  therefrom  that  both 
parties  intended  that  they  were  to 
have  effect.  Dorgeloh  v.  Murtha, 
156  N.  Y.  Supp.  181,  92  Misc.  279. 

The  lex  loti  contractus  governs 
marriage  contracts  unless  con- 
trary to  the  prohibitions  of  na- 
tural law  or  the  express  prohibit- 
ions of  a  statute  of  a  State  of 
which  the  parties  were  citizens  at 
the  time  of  their  marriage  and  in 
which  the  marriage  is  questioned. 
Davidson  v.  Ream,  161  N.  Y. 
Supp.  73,  97  Misc.  89. 

"The  contract  of  marriage  is  a 
contract  jure  gentium,  and  consent, 
and  the  assumption  of  the  marriage 
status  are  all  that  is  required  by 
natural  or  public  law."  Butterfield 
v.  Ennis,  193  Mo.  App.  638,  186 
S.  W.  Rep.  1173. 

57  Clayton  v.  Wardell,  4.  N.  Y. 
231;  Cheney  v.  Arnold,  15  N.  Y. 
351,  and  cases  cited. 

Record  evidence  of  marriage  is 


58  Van  Tuyl  v.  Van  Tuyl,  8 
Abb.  Pr.  N.  S.  5,  s.  c.,  57  Barb. 
235. 

Under  the  law  of  Nevada  it  is 


not  necessary  in  order  to  constitute 
a  valid  marriage  that  any  cere- 
mony should  be  performed  by  any 
person  or  be  had  before  any  per- 


246 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


necessary,59  at  least  if  there  be  proof  of  solemnization.60   But 


not  required  to  prove  marriage  re- 
lation. Smith  v.  Fuller,  (Iowa,) 
,  108  N.  W.  Ren.  765;  State  v. 
Williams,  20  Iowa,  98. 

Where  immigrants  upon  their 
arrival  in  this  country,  in  compli- 
ance with  the  law  requiring  the 
marital  relations  to  be  truly  stated 
before  their  admission,  represented 
in  their  declarations  that  they  were 
husband  and  wife,  and  cohabita- 
tion followed,  a  marriage  is  es- 
tablished. In  re  Spondre,  162  N. 
Y.  Supp.  943,  98  Misc.  524. 

59  Jackson  v.  Whine,  7  Wend.  47; 
Caujolle  v.  Feme,  26  Barb.  177. 

"A  common-law  marriage  may  be 
said  to  be  one  not  statutory  but 
recognized  by  the  common  law. 
Such  marriage  may  be  ceremonial, 
in  that  the  parties  may  adopt  any 
ceremony  they  may  elect;  or  all 
ceremony  may  be  dispensed  with. 
A  simple  consent,  statement,  or 
promise  between  the  parties,  suf- 
ficient to  make  a  contract,  is  only 
necessary,  and  this  whether  mar- 
riage be  regarded  as  a  contract  or 
a  status.  The  contract  completes 
the  marriage  and  it  is  not  neces- 
sary that  it  be  followed  by  cohabi- 
tation to  complete  it."  Davidson 
v.  Ream,  161  N.  Y.  Supp.  73,  97 
Misc.  89,  109. 

MJaques  v.  Pub.  Administrator, 
1  Bradf .  479. 


Common-law  marriages  were 
valid  in  New  York  prior  to  1901, 
when  they  were  prohibited  by 
statute.  In  1907  the  section  pro- 
hibitory of  such  marriages  was 
repealed  and  although  no  provision 
was  made  in  the  repealing  law  recog- 
nizing the  validity  of  common-law 
marriages,  they  again  became  valid. 
Ziegler  v.  P.  Cassidy's  Sons,  220 
N.  Y.  98, 115  N.  E.  Rep.  471. 

Where  parties  competent  to 
marry  went  from  New  York  to 
New  Jersey  and  there  had  a  cere- 
monial marriage  performed  which 
was  defective  for  want  of  license 
and  then  returned 'to  New  York 
with  no  intent  of  not  being  married, 
and  publicly  assumed  the  relations 
of  husband  and  wife,  their  acts 
constituted  a  common-law  mar- 
riage in  the  State  of  New  York, 
which  must  be  presumed  to  have 
resulted  equally  in  the  State  of 
New  Jersey.  Davidson  v.  Ream, 
178  App.  Div.  362, 164  N.  Y.  Supp. 
1037. 

"Evidence  to  establish  a  com- 
mon-law marriage  should  be  clear, 
consistent,  and  convincing.  Es- 
pecially is  this  so  where  the  result 
of  establishing  such  marriage  would 
lay  the  ground  for  a  criminal  prose- 
cution of  either  of  the  parties 
to  the  marriage  for  bigamy  and 
would  invalidate  a  subsequent 


son.    The  relation  may  be  formed 
by  words  of  present  assent.    Parker 
v.    De   Bernardi,  164    Pac.    Rep. 
(Nev.)  645. 
Marriage    is    a    civil    contract. 


Neither  formal  ceremony  nor  mar- 
riage license  is  essential  under  the 
laws  of  Missouri.  Pope  v.  Mis- 
souri Pac.  Ry.  Co.,  175  S.  W.  Rep. 
(Mo.)  955. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


247 


proof  of  a  contract  per  verba  de  futuro  is  not  enough,  though 
followed  by  cohabitation.61  The  contract  or  its  solemniza- 
tion before  a  clergyman  or  magistrate  may  be  proved  by  the 
test'mony  of  an  eye-witness,  and  for  this  purpose  a  party  is 
competent;62  and  parol  testimony  is  not  excluded  by  the 
fact  that  the  statute  provides  for  a  record.63  It  is  enough 


marriage  wherein  all  of  the  statu- 
tory provisions  had  been  observed." 
Peery  v.  Peery,  27  Colo.  App.  533, 
150  Pac.  Rep.  329. 

Every  presumption  should  be 
indulged  in  favor  of  the  legality 
of  a  common-law  marriage  in  the 
same  way  and  to  the  same  extent 
as  the  law  indulges  in  favor  of  a 
ceremonial  marriage.  Howard  v. 
Kelly,  111  Miss.  285,  71  So.  Rep. 
391. 

"Cheney  v.  Arnold,  15  N.  Y. 
345;  Holmes  v.  Holmes,  1  Abb. 
U.  S.  C.  Ct.  539;  Duncan  ».  Dun- 
can, 10  Ohio  St.  181.  Contra, 
1  Bish.  on  Mar.  &  D.  §§  251-256. 

To  constitute  a  common-law  mar- 
riage, the  agreement  though  made 
per  verba  de  prcesenti  must  be 
followed  by  cohabitation.  Herd  v. 
Herd,  194  Ala.  613,  69  So.  Rep. 
885,  L.  R.  A.  1916  B.  1243. 

The  common-law  mode  of  mar- 
riage by  consent  of  the  parties, 
without  ceremony  or  solemniza- 
tion, followed  by  cohabitation  is 
recognized  in  the  State  of  Alabama. 
Id. 

Also  in  the  state  of  Georgia. 
Wynne  v.  State,  17  Ga.  App.  263, 
86  S.  E.  Rep.  823. 

"Bissell  v.  Bissell,  7  Abb.  Pr. 
(N.  S.)  16,  s.  c.,  55  Barb.  325. 

One  of  the  parties  to  a  marriage 
contract  is  a  competent  witness. 


Ross  v.  Sparks,  81  N.  J.  Eq.  117, 
88  Atl.  Rep.  384,  affirmed  in  81 
N.  J.  Eq.  211,  88  Atl.  Rep.  385. 

But  the  testimony  of  either 
party  to  a  common-law  marriage 
will  not  be  sufficient  in  itself  to 
establish  the  marriage.  Jordan  v. 
Johnson,  155  S.  W.  Rep.  (Tex. 
Civ.  App.)  1194. 

When  a  marriage  is  proved  to 
have  been  performed  by  a  clergy- 
man or  other  officer  authorized 
to  perform  it,  the  presumption  is 
that  it  is  legal.  State  v.  McGilvery, 
20  Wash.  240,  55  Pac.  Rep.  115. 

Where  the  place  was  a  usual 
one  for  the  official  solemnization 
of  marriages  it  may  be  inferred 
where  the  official  records  have  been 
destroyed  by  fire  that  the  person 
officiating  was  an  officer  authorized 
to  solemnize  the  marriage.  In  re 
Lord,  176  App.  Div.  565, 163  N.  Y. 
Supp.  177. 

It  is  not  necessary  that  the  spe- 
cial or  official  character  of  the  per- 
son by  whom  the  right  was  solemn- 
ized should  be  proved  by  record 
evidence  of  his  ordination  or  ap- 
pointment. Jowett  v.  Wallace,  112 
Maine,  389,  92  Atl.  Rep.  321, 
Ann.  Gas.  1917,  A.  754. 

83  Commonwealth  v.  Norcross,  9 
Mass.  492.  A  wife  who  is  the  com- 
plainant in  the  prosecution  of  her 
husband  for  adultery  cannot  testify 


248 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


that  the  witness  be  able  to  testify  that  the  marriage  was 
celebrated  according  to  the  usual  form,  and  he  need  not  be 
able  to  state  the  words  used.64  From  the  fact  of  solemniza- 
tion assent  is  presumed,65  even  though  it  was  not  expressed.66 


to  their  marriage  and  cohabitation. 
People  v.  Imes,  110  Mich.  250,  68 
N.  W.  Rep.  157.  But  see  State  v. 
Melton,  120  N.  C.  591,  26  S.  E. 
Rep.  933,  where  it  was  held  that  in 
an  indictment  for  bigamy  the  first 
wife  of  the  defendant  is  a  compe- 
tent witness  to  prove  the  marriage, 
public  cohabitation  as  man  and 
wife  being  public  acknowledgment 
of  the  relation  and  not  coming 
within  the  nature  of  the  confiden- 
tial relations  which  the  policy  of 
the  law  forbids  either  to  give  in 
evidence.  A  foreign  certificate 
of  marriage  is  inadmissible  in  a 
criminal  case.  People  v.  Imes,  110 
Mich.  250,  68  N.  W.  Rep.  157. 

Witnesses  at  the  marriage  cere- 
mony may  testify  as  to  it.  Boling 
t;.  State,  91  Neb.  599,  136  N.  W. 
Rep.  1078. 

"Fleming  v.  People,  27  N.  Y. 
329.  In  a  prosecution  for  adultery, 
the  testimony  of  the  clergyman  and 
others  who  participated  in  a  mar- 
riage ceremony  in  a  foreign  coun- 
try between  complainant  and  re- 
spondent, although  insufficient,  in 
the  absence  of  proof  as  to  the  laws 
of  such  country,  to  prove  a  valid 
marriage,  is  admissible  to  show  that 
a  ceremony  was  in  fact  performed, 
which,  if  followed  by  cohabitation, 
would  establish  the  marital  rela- 
tion. People  v.  Imes,  110  Mich. 
250,  68  N.  W.  Rep.  157. 

Oral  evidence  will  be  sufficient  to 


prove  a  marriage,  without  pro- 
ducing the  marriage  certificate. 
Watson  v.  Lawrence,  134  La, 
194,  63  So.  Rep.  873,  L.  R.  A. 
1915,  E.  121,  Ann.  Gas.  1916  A. 
651. 

If  it  appears  that  a  witness  saw 
the  parties  stand  up,  and  go  through 
the  usual  ceremonies  of  marriage, 
directed  by  one  who  usually  or  ap- 
peared usually  to  marry  persons,  a 
legal  marriage  will  be  presumed 
until  the  contrary  is  proved. 
Jowett  v.  Wallace,  112  Maine,  389, 
92  Atl.  Rep.  321,  Ann.  Gas.  1917, 
A.  754. 

65  Id. 

Making  a  false  affidavit  to  secure 
a  license  does  not  invalidate  the 
marriage  but  one  doing  so  may  be 
prosecuted  for  perjury.  Swat  oil- 
men's Union  of  North  America  v. 
Gillennan,  162  N.  W.  Rep.  (Mich.) 
1024. 

It  is  not  necessary  to  indulge  in 
any  presumptions  in  order  to  over- 
come the  effect  of  misstatements 
as  to  parentage,  date  and  place  of 
birth  contained  in  an  application 
for  a  marriage  license,  where  there 
is  sufficient  competent  evidence  in 
the  record  to  show  who  made  the 
application.  Bellinger  v.  Devine, 
269  111.  72,  109  N.  E.  Rep.  666. 

66  Harrod  v.  Harrod,  1  Kay  &  J. 
4,  17.    Contra,  Dennison  r.  Denni- 
son,  35  Md.  361. 

When    a    marriage    has    been 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


249 


Where  solemnization  was  necessary  by  the  law  under  which 
the  marriage  was  contracted,  if  it  is  proved,  and  matrimo- 
nial cohabitation  under  it,  the  law  presumes  that  all  the  neces- 
sary formalities  were  had,  unless  the  contrary  is  shown; 67 
and  even  then  a  subsequent  valid  marriage  may  be  presumed 
from  continued  matrimonial  cohabitation  under  color  of  the 
informal  solemnization.68 


solemnized  according  to  the  forms 
of  law,  every  presumption  will  be 
indulged  in  favor  of  its  validity. 
Schaffer  v.  Richardson,  125  Md. 
88,  93  Atl.  Rep.  391,  L.  R.  A.  1915, 
E.  186. 

"Smith  v.  Huson,  1  Phill.  287, 
294,  1  Bish.  Mar.  &  D.,  §§  450,  451. 
It  is  the  better  opinion  that,  even 
,  where  the  law  requires  solemniza- 
tion, it  is  enough  to  show  solemniz- 
ation before  an  officer  de  facto, 
that  is,  a  person  assuming  to  act 
by  authority  in  the  solemnization. 
1  Bish.  on  Mar.  &  D.,  §  496. 

Where  a  marriage  is  established 
it  is  presumed  that  all  the  pre- 
liminary formalities  were  gone 
through.  Summerville  v.  Summer- 
'ville,  31  Wash.  411,  72  Pac.  Rep. 
84;  Matter  of  Sloan,  50  Wash.  86, 
96  Pac.  Rep.  684, 17  L.  R.  A.  (N.  S.) 
960. 

A  clergyman  performing  the 
ceremony  will  be  presumed  to  have 
authority.  People  i1.  Schoon- 
maker,  117  Mich.  190,  75  N.  W. 
Rep.  439,  72  Am.  St.  Rep.  560; 
Franklin  v.  Lee,  30  Ind.  App.  31, 
62  N.  E.  Rep.  78. 

"There  is  no  one  absolutely 
necessary  manner  of  proving  a 
ceremonial  marriage  to  the  exclu- 
sion of  all  other  methods.  It  may 
be  proved  by  the  testimony  of 


persons  present  who  saw  the  mar- 
riage, and  the  parties  to  an  alleged 
marriage  may  be  witnesses  for  or 
against  it  unless  rendered  incom- 
petent by  some  statute  provi- 
sion. .  .  .  The  record  of  the  mar- 
riage and  marriage  certificates  are 
also  competent  evidence  of  mar- 
riage, but  the  register  of  the  mar- 
riage is  not  the  best  evidence,  at 
least  not  in  the  sense  that  it  must 
be  produced  if  obtainable.  .  .  . 
Cohabitation,  reputation,  declara- 
tions and  conduct  of  the  parties, 
and  reception  among  friends  and 
neighbors  are  all  admissible  in 
evidence,  though  their  probative 
force  under  the  circumstances,  is 
for  the  court."  Rhode  Island  Hos- 
pital Trust  Co.  v.  Thorndike,  24 
R,  I.  105,  52  Atl.  Rep.  873. 

Where  it  is  sought  so  to  construe 
a  statute  as  to  make  illegal  every 
marriage  contracted  or  solemnized 
otherwise  than  in  accordance  with 
it,  such  purpose  should  be  plain 
and  unmistakable.  The  courts 
ought  not  to  be  asked  to  pronounce 
marriages  invalid  and  children 
illegitimate  under  a  statute  unless 
it  has  plainly  decreed  and  foretold 
those  consequences.  Ziegler  v. 
P.  Cassidy's  Sons,  220  N.  Y.  98, 
115  N.  E.  Rep.  471. 

68  Johnson  v.  Johnson,  1  Coldw. 


250 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


16.  Certificate  or  Registry. 

Marriage  may  be  equally  proved  by  a  marriage  certificate, 
if  made  evidence  by  statute,69  or  if  so  connected  with  the 
parties  as  to  be  competent  as  part  of  the  res  gestoe,  or  as  their 
declaration,  or  if  by  lapse  of  time  and  family  tradition  it 
is  competent  as  hearsay.70  It  may  also  be  proved  by  an 
official  registry  kept  pursuant  to  statute,71  or  by  the  regis- 
try kept  by  the  officiating  clergyman,72  or  the  proper  officer 
of  a  church  or  religious  society,73  pursuant  to  his  duty, 
though  without  requirement  of  statute.74  The  registry  is 


(Term.)  626, 634;  Harrod  v.  Harrod, 
1  Kay  &  J.  4,  17;  Rex  v.  Brampton, 
10  East.  288;  Raynham  v.  Canton, 
3  Pick.  293. 

"As  a  general  rule,  marriages 
contracted  in  another  State  pur- 
suant to  the  law  thereof,  though 
not  according  to  our  law,  will  be 
recognized  so  as  to  entitle  a  widow 
to  dower  hi  this  State."  (W.  Va.) 
Miller  v.  Miller,  76  W.  Va.  352, 
85  S.  E.  Rep.  542. 

While  a  ceremonial  marriage  per- 
formed between  a  female  under  the 
age  of  consent  and  a  man  competent 
to  contract  marriage,  may  be  said 
to  be  void,  yet  the  female  after 
reaching  the  age  of  consent  may 
affirm  the  marriage,  and  it  is  there- 
after binding,  and  no  new  marriage 
is  required.  Americus  Gas,  etc., 
Co.  v.  Coleman,  46  Ga.  App.  17, 
84  S.  E.  Rep.  493. 

69  Otherwise  of  a  certificate  given 
many  years  after  the  fact.  Gaines 
v.  Relf,  12  How.  (U.  S.)  472,  555. 
The  original  marriage  license  signed 
by  the  justice  solemnizing  the  mar- 
riage is  admissible  to  prove  a  mar- 
riage, though  neither  the  justice 
nor  the  witnesses  attesting  the  cer- 


tificate as  being  present  at  the 
marriage  are  present  in  court. 
State  v.  Melton,  120  N.  C.  591,  26 
S.  E.  Rep.  933.  And  the  record 
book  of  marriages  of  the  county 
is  admissible  to  prove  a  marriage. 
Id. 

If  the  witnesses  to  a  marriage 
certificate  are  out  of  the  jurisdic- 
tion, the  certificate  itself  will  be 
accepted  as  evidence.  State  v. 
MacRae,  83  N.  J.  Eq.  796,  85  Atl. 
Rep.  455. 

70  See  paragraph  34,  below. 

71  See  paragraph  43,  below,  and 
Jackson    v.    Boneham,   15   Johns. 
266. 

The  production  of  the  record 
proof  of  marriage  from  the  proper 
public  records,  with  proof  of  the 
identity  of  the  parties,  is  sufficient, 
prima  facie  to  show  a  legal  marriage 
in  fact.  Jowett  v.  Wallace,  112. 
Maine,  389,  92  Atl.  Rep.  321,  Ann. 
Gas.  1917,  A.  754. 

72  Maxwell  v.  Chapman,  S  Barb. 
579,  582. 

"Jackson  v.  King,  5  Cow. 
237. 

74  Maxwell  v.  Chapman  (above), 
Rose.  N.  P.  232. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


251 


evidence  both  of  the  fact  of  marriage  and  the  date  of  solem- 
nization.75 

17.  Indirect  Evidence  of  Marriage. 

Evidence  of  cohabitation  and  repute — that  is  of  status 
or  matrimonial  condition — is  only  indirect  or  presumptive 
evidence  of  a  contract  of  marriage.  This  is  primary  not 
secondary  evidence,76  but  its  efficacy  depends  .entirely  on  its 
justifying  an  inference  that  a  contract  of  marriage  was  once 
made; 77  still  it  is  not  essential  that  such  evidence  point 
to  any  particular  time  of  contract,  unless  time  is  material 
under  the  issue.  One  who  alleges  and  fails  to  prove  a  formal 
contract  of  marriage  is  not  thereby  necessarily  precluded 
from  adducing  indirect  evidence,78  although  its  value  may  be 
fatally  impaired  by  the  false  allegation  of  a  formal  marriage.79 


75  Doe  v.  Barnes,  1  Moo.  &  Rob. 
386. 

76 1  Bish.  Mar.  &  D.,  §  483. 

The  presumption  of  marriage, 
from  cohabitation,  apparently  mat- 
rimonial, is  one  of  the  strongest 
presumptions  known  to  the  law, 
especially  so  in  a  case  involving 
legitimacy;  and  the  presumption 
can  be  overcome  only  by  the  most 
cogent  and  satisfactory  evidence. 
Hynes  v.  McDermott,  91  N.  Y.  451, 
43  Am.  Rep.  677. 

77  Breadalbane  Case,  Campbell 
v.  Campbell,  L.  R.,  1  Sc.  App.  in 
H.  of  L.  182. 

"The  contract  is  the  element 
needed  to  constitute  marriage,  but 
to  establish  the  contract,  the  con- 
duct of  the  parties  has  always  been 
held  important  as  evidence  to 
prove  it.  A  single  act  of  con- 
summation and  a  single  act  of 
recognition  would  be  competent 
to  support  the  contention  that  the 
parties  consented  and  actually 


entered  into  a  marriage  contract, 
just  as  much  as  many  acts  of  that 
character;  the  number  of  such  acts 
going  to  the  strength  of  the  proof." 
Davidson  v.  Ream,  161  N.  Y.  Supp. 
73,  97  Misc.  89. 

78  Tummalty    v.    Tummalty,    3 
Bradf.  369. 

It  may,  from  the  actions  of  the 
parties,  their  visible  relations  to 
each  other  and  their  representa- 
tions to  others,  be  inferred  that 
at  some  time  previous  they  had 
entered  into  a  contract  of  marriage, 
and  that  is  all  the  dignity  of  the 
proof  of  cohabitation  and  repute. 
It  is  circumstantial  evidence  tend- 
ing to  establish  a  previously  exist- 
ing fact,  and  such  proof  may  be  as 
satisfactory,  and  often  more  satis- 
factory than  the  much  more  limited 
direct  evidence  which  it  is  or- 
dinarily possible  to  produce.  Mat- 
ter of  Hamilton,  76  Hun  (N.  Y.), 
200,  27  N.  Y.  Supp.  813. 

79  The  question  of  weight  rather 


252 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


Indirect  evidence  may  be  sufficient  to  establish  a  marriage, 
even  though  it  may  have  the  effect  to  invalidate  a  subse- 
quent marriage.80 

18.  Cohabitation  and  Repute. 

In  the  absence  of  direct  proof,  marriage  cannot  be  proved 
by  cohabitation  alone,  however  long  continued; 81  there  must 


than  competency  seems  to  have 
been  passed  on  in  Redgrave  v. 
Redgrave,  38  Md.  98.  Compare 
Blackburn  v,  Crawfords,  3  Wall. 
194.  Inconsistencies  in  testimony, 
due  to  family  pride,  etc.,  explain- 
able. Gaines  v.  New  Orleans,  6 
Wall.  705.  Testimony  to  a  mar- 
riage between  dissolute  or  unscru- 
pulous persons  to  be  cautiously 
weighed.  Steuart  v.  Robertson, 
L.  R.  2  Sc.  App.  494,  520,  s.  c.,  13 
Moak's  Eng.  R.  165,  191.  Upon 
the  hearing  of  an  application  by 
the  alleged  widow  of  a  decedent  to 
revoke  letters  of  administration 
granted  on  the  decedent's  estate, 
testimony  by  the  petitioner  to  the 
effect  that  she  and  the  decedent 
agreed  to  assume  toward  each 
other  the  relation  of  man  and  wife 
without  the  performance  of  a  mar- 
riage ceremony,  and  that  they 
thereafter  lived  together  in  pur- 
suance of  the  agreement,  is  inad- 
missible. Matter  of  Brush,  25 
App.  Div.  (N.  Y.)  610. 

^Brower  v.  Bowers,  1  Abb.  Ct. 
App.  Dec.  214.  s.  c.,  as  Bowers  v. 
Brower,  9  N.  Y.  Leg.  Obs.  196; 
s.  P.,  O'Gara  v.  Eisenlohr,  38 
N.  Y.  296. 

A  decree  for  separate  mainte- 
nance is  inadmissible  for  the  pur- 
pose of  establishing  the  marriage 


status  against  persons  who  were 
neither  parties  nor  privies  to  that 
suit.  American  Woolen  Co.  v. 
Lesher,  2  67  111.  11,  107  N.  E.  Rep. 
882. 

81  Commonwealth  v.  Stump,  53 
Penn.  St.  132.  Marriage  will  some- 
times be  presumed  from  cohabita- 
tion. But  such  presumption  may 
be  overcome,  as  cohabitation  may 
be  meretricious  as  well  as  matri- 
monial. Laurence  v.  Laurence, 
164  111.  367,  45  N.  E.  Rep.  1071. 

A  marriage  will  not  be  presumed 
from  cohabitation  and  reputation 
unless  it  be  shown  that  such  co- 
habitation was  matrimonial  and 
not  meretricious.  Fender  v.  Segro, 
41  Okla.  318,  137  Pac.  Rep.  103. 

The  cohabitation  must  be  con- 
sistent with  the  marital  relation. 
In  re  Patterson,  237  Pa.  24,  85 
Atl.  Rep.  75. 

Slight  circumstances  may  be  suf- 
ficient to  establish  a  change  from 
an  illicit  to  a  legal  relation,  and 
proof  of  its  time  or  place  is  not  in- 
dispensable. Adger  v.  Ackerman, 
115  Fed.  Rep.  124,  52  C.  C.  A. 
568;  Badger  v.  Badger,  88  N.  Y. 
546,  42  Am.  Rep.  263;  State  v. 
Worthingham,  23  Minn.  528;  Prince 
».  Edwards,  175  Ala.  532,  57  So. 
Rep.  714. 

Where  the  cohabitation  was  illicit 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


253 


be  something  to  show  that  the  cohabitation  was  matrimonial, 
not  meretricious.  The  fact  that  the  parties  were  reputed 
among  friends  and  acquaintances  to  be  man  and  wife  will 
suffice,  with  evidence  of  cohabitation,  if  the  reputation  be  a 
general  or  at  least  a  consistent  reputation.  A  divided  re- 
pute is  of  no  avail.82  A  mere  local  repute,  if  residence  is 


at  the  outset  the  presumption  is 
that  it  continues  to  be  so  until  the 
contrary  is  proved.  Jones  v.  Jones, 
4  Pa.  Dist.  Rep.  223. 

A  state  of  concubinage  existing 
for  a  long  period  between  two  per- 
sons cannot  be  converted  into  a 
state  of  lawful  matrimony  without 
some  evidence,  circumstantial  or 
otherwise,  establishing  an  actual 
marriage  between  them.  Matter 
of  Eichler,  84  N.  Y.  Misc.  667,  146 
N.  Y.  Supp.  846;  Chamberlain  v. 
Chamberlain,  71  N.  Y.  423;  Matter 
of  Brush,  25  N.  Y.  App.  Div.  610, 
49  N.  Y.  Supp.  803. 

82  Cunninghams  v.  Cunninghams, 
2  Dow.  482,  511;  Commonwealth  v. 
Stump  (above).  Contra,  Lyle  v. 
Ellwood,  L.  R.  19  Eq.  C.  98,  s.  c., 
11  Moak's  Eng.  702.  A  witness 
cannot  be  asked  if  there  was  a 
divided  reputation  in  the  com- 
munity as  to  whether  the  parties 
were  married  or  not.  Jackson  v. 
Jackson,  82  Md.  17,  33  Atl.  Rep. 
317.  "The  evidence  of  reputa- 
tion, when  admitted,  is  an  excep- 
tion to  general  rules.  It  should 
never  be  allowed  to  stray  beyond 
some  useful  or  necessary  purpose. 
In  its  application  to  cases  of  pedi- 
gree, it  is  justified  by  difficulties  of 
proof,  and  confined  generally  to 
the  family  and  relatives  whose 
knowledge  is  assumed,  and  who 


have  spoken  before  a  controversy 
arisen.  In  its  application  to  the 
fact  of  marriage  it  is  more  than 
mere  hearsay.  It  involves  and  is 
made  up  of  social  conduct  and 
recognition,  giving  character  to 
an  admitted  and  unconcealed  co- 
habitation. But,  in  its  application 
to  a  man  living  in  appearance  a 
single  life,  it  adds  nothing  to  that 
fact,  it  creates  no  further  contra- 
diction to  an  intercourse  carried 
on  elsewhere  under  the  appearance 
of  matrimony,  and  throws  no  addi- 
tional light  upon  it.  It  amounts  to 
bare  hearsay,  and  the  unsworn 
declarations  of  persons  knowing 
nothing  of  the  facts  in  contro- 
versy." Badger  v.  Badger,  88 
N.  Y.  546,  556. 

Evidence  as  to  general  repute 
will  be  admitted.  Farmer  v.  Tow- 
ers, 106  Ark.  123,  152  S.  W.  Rep. 
993. 

Cohabitation,  reputation  and 
general  surroundings  that  indicate 
the  reasonable  probability  of  the 
conclusion  that  the  parties  were 
married  are  recognized  as  being 
sufficient  evidence  to  establish  that 
fact,  especially  so  in  the  case  of 
very  old  people,  or  people  coming 
from  another  country  where  they 
were  married,  or  other  instances 
in  which  it  would  be  difficult  to 
establish  the  fact.  Burning  v. 


254 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


brief  and  frequently  changed,  is  of  little  account  alone,  for 
an  intended  meretricious  connection  might  be  concealed 
by  a  regard  for  appearances.  Hence  there  should  be  some 
degree  of  public  recognition  of  the  relation  of  husband  and 
wife  among  acquaintances  and  friends.83  The  mere  fact 


Hastings,  183  Pa.  St.  210,  38  Atl. 
Rep.  627. 

A  marriage  solemnized  before 
the  entry  of  a  final  decree  of  di- 
vorce against  one  of  the  parties  is 
absolutely  void  and  cannot  be 
made  valid  by  continued  living 
as  husband  and  wife  after  the 
entry  of  the  decree.  Pettit  v. 
Pettit,  105  N.  Y.  App.  Div.  312, 
93  N.  Y.  Supp.  1001. 

A  marriage  solemnized  before 
the  entry  of  a  final  decree  of  di- 
vorce in  favor  of  one  of  the  parties 
will  be  valid  if  the  parties  to  it 
continue  to  live  as  husband  and 
wife  after  the  decree  is  entered. 
Land  v.  Land,  206  111.  288,  68 
N.  E.  Rep.  1109,  99  Am.  St.  Rep. 
171. 

Reputation  of  marriage  must  be 
unquestioned  before  it  can  operate 
as  a  part  of  the  foundation  for  an 
inference  of  marriage.  Pope  v. 
Missouri  Pac.  Ry.  Co.,  175  S.  W. 
Rep.  (Mo.)  955. 

The  presumption  of  law,  founded 
on  cohabitation  and  repute,  that 
a  marriage  had  taken  place,  will 
not  prevail  over  proof  of  a  subse- 
quent marriage  hi  fact  by  one  of 
the  parties  with  a  third  person. 
Brown  v.  State,  16  Ga.  App.  603, 
85  S.  E.  Rep.  951. 

The  fact  of  marriage,  even  though 
legitimacy  depends  upon  it,  may 
be  proved  by  common  repute. 


Cave  v.  Cave,  101  S.  C.  40,  85 
S.  E.  244. 

Cohabitation  together  as  man 
and  wife  and  declarations  by  the 
parties  concerning  their  relations 
as  husband  and  wife,  etc.,  do  not 
constitute  a  marriage;  but  they 
are  evidential  facts,  from  which,  in 
the  absence  of  proof  to  the  con- 
trary, a  strong  presumption  of 
marriage  arises,  because  they  are 
circumstances  which  usually  attend 
that  relation.  Mere  living  together 
and  repute  do  not  alone  constitute 
a  valid  marriage.  Matter  of  Mor- 
ris, 157  N.  Y.  Supp.  472,  92  Misc. 
630. 

83  Hill  v.  Burger,  3  Bradf.  432, 
437. 

Open  cohabitation  as  man  and 
wife,  with  introduction  to  friends 
and  neighbors  as  such,  will  estab- 
lish the  marriage.  Cramsey  v. 
Sterling,  111  N.  Y.  App.  Div.  568, 
97  N.  Y.  Supp.  1082;  Gall  v.  Gall, 
114  N.  Y.  109,  21  N.  E.  Rep. 
106. 

Sexual  relations  shown  to  have 
been  meretricious  in  their  incep- 
tion, are  presumed  to  continue 
meretricious  until  they  are  proven 
to  be  matrimonial.  Cohabitation 
does  not  create  a  presumption  of 
marriage  unless  matrimonial  as- 
sociation and  matrimonial  habits 
are  proved.  Bellinger  v.  Devine, 
269  111.  72,  109  N.  E.  Rep.  666. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES  255 

that  the  man,  under  particular  circumstances,  may  have 
attempted  to  give  to  his  mistress  a  different  character  from 
the  meretricious  one  which  she,  in  fact,  sustained  toward  him, 
is  not  sufficient.84 

In  proving  marriage  by  general  repute,  a  witness  may 
testify  that  the  reputation  at  the  place  of  residence  was  that 
the  persons  in  question  were  man  and  wife;  but  he  may  be 
cross-examined  as  to  the  sources  of  his  information,  and  if 
it  appear  on  cross-examination  that  he  is  speaking  from  in- 
formation given  him  by  a  particular  person,  either  of  the 
fact  or  of  the  general  reputation,  the  evidence  is  shown  to  be 
incompetent,  unless  the  source  of  information  was  a  member 
of  the  family,  of  either  spouse,  in  which  case  the  rule  as  to 
declarations  may  apply.85  The  presumption  of  marriage 
arising  from  cohabitation  is  overcome  by  proof  that  at  the 
time  one  of  the  parties  has  a  living  wife  or  husband,  for  it  is 
not  to  be  presumed  that  one  of  the  parties  was  guilty  of 
bigamy  in  consummating  the  marriage.86 

19.  Cohabitation  and  Declarations. 
Evidence  of  confessions  or  declarations  by  one  or  both 

84  Rose  v.  Clark,  8  Paige,  574,  admissible.    Pope  v.  Missouri  Pac. 
582.     The  degree  of  proof  of  co-  Ry.  (Mo.),  175  S.  W.  Rep.  955. 
habitation   and    repute    must   be  w  Henry  v.  McNealey,  24  Colo. 
increased  when  one  of  the  parties  456,  50  Pac.  Rep.  37. 

is  still  living.     Hill  v.  Burger,  3  Where  the  effect  of  a  judgment 

Bradf .  432,  437.  will   necessarily   brand    one   with 

It  is  necessary  that  the  contract  the  crime  of  bigamy,  strict  proof 

of  common-law    marriage    should  is  required  that  the  alleged  prior 

be  followed  by  a  general  and  full  marriage  was  in  fact  a  valid  one 

recognition  by  each  of  the  other  as  according  to  the  laws  of  the  place 

husband   or  wife.     State  v.  Burk-  of  marriage  and  in  compliance  with 

rev  (Mo.),  183  S.  W.  Rep.  328.  all  the  formalities  required  by  such 

85  Shedden  r.  Patrick,  30  L.  J.  laws.      Lazarowicz  v.  Lazarowicz, 
P.  M.  &  D.  217,  223  (1860-1861).  154  N.  Y.  Supp.  107,  91  Misc.  116. 

Since  acknowledgment,  cohabi-  It  will  be  presumed  that  a  per- 
tation  and  reputation  constitute  son  contracted  a  legitimate  mar- 
presumptive  evidence  of  marriage,  riage  rather  than  that  he  com- 
evidence  that  a  man  and  woman  mited  bigamy.  Matter  of  Farley 
Avere  reputed  to  be  man  and  wife  is  155  X.  Y.  Supp.  63,  91  Misc.  185. 


256  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

parties  that  they  were  married,  is  competent  against  them, 
and  if  made  during  cohabitation;  so  as  to  characterize  it. 
is  competent  for  or  against  third  persons; 87  and  so  are  the 
acts  and  conduct  of  the  parties  toward  each  other.88  Con- 
cealment which  prevented  any  public  repute  from  arising, 
though  a  very  strong  circumstance  against  the  presumption 
of  marriage,89  is  not  necessarily  fatal  to  it,  but  may  be  ex- 
plained; 90  and  if  explained,  dispenses  in  so  far  with  evidence 
of  repute.  Adminissions  and  declarations  made,  and  a  gen- 
eral repute  originating,  after  the  cohabitation  had  ceased, 
are  not  competent  except  as  against  the  declarant.  They 
must  be  reasonably  contemporaneous  with  the  alleged 
status,  so  as  to  characterize  it,  as  facts  in  the  nature  of  part 
of  the  res  gestce.31 

20.  Marriage  after  Meretricious  Intercourse. 

If  the  cohabitation  is  shown  to  have  commenced  as  a 
meretricious  one,  the  mere  continuance  of  cohabitation, 
even  with  matrimonial  repute,  can  never  amount  to  evidence 
of  marriage; 92  but  the  presumption  in  favor  of  marriage  is 

87  See  Hayes  v.  People,  25  N.  Y.          91  Matter   of   Taylor,    9   Paige, 
396,  per  ALLEN,  J.;  1  Bish.  Mar.  &      611,  616. 

D.  §  497.     Compare  Westfield  v.          9-  This  seems  to  be  the  result  of 
Warren,   3  Halst.   249.     Declara-  the  present  state  of  the  authorities; 
tions  of  parties,  made  while  they  but  see,  for  a  rule  more  favorable 
were  living  together,  are  compe-  to   the   inference   of   marriage,    1 
tent  to  characterize  the  nature  of  Bish.  Mar.  &  D.,  §§  506-509. 
their  cohabitation.     Stackhouse  v.          It  is  the  consent  of  the  parties, 
Stotenbur,  22  App.  Div.  (N.Y.)312.  not  their  concubinage,  which  con- 

88  See  Christy  v.  Clarke,  45  Barb,  stitutes  a  valid  marriage.     Marks 
529.  v.  Marks,  108  111.  App.  371;  Mc- 

89  Cunningham    v.     Burdell,     4  Kenna  v.  McKenna,  180  111.  577, 
Bradf.  343.  54  N.  E.  Rep.  641. 

The  fact  of  secrecy  may  be  evi-  Where  the  relation  started  mere- 
dence  against  the  fact  of  marriage.  triciously  it  is  presumed  to  con- 
Cave  v.  Cave,  101  S.  C.  40,  85  S.  tinue  so,  and  there  is  no  marriage. 

E.  Rep.  244.  Pike  v.  Pike,  112  111.  App.  243;  Bad- 

90  Gaines  v.  New  Orleans,  6  Wall,  ger  v.  Badger,  88  N.   Y.   546,  42 
707.  Am.  Rep.  263;  Spencer  v.  Spencer, 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


257 


so  favored,93  that  the  courts  lay  hold  of  any  circumstances 
significant  of  actual  change  from  an  illicit  to  a  lawful  rela- 
tion, even  without  any  evidence  pointing  to  the  actual  time 
and  mode  of  the  change.  Marriage  may  be  presumed,  where 
cohabitation  fhider  circumstances  that  would  have  been 
matrimonial  but  for  the  impediment  of  an  existing  marriage 
of  one  of  the  parties,  is  continued  after  that  impediment  is 
removed  and  known  to  the  parties  to  be  so  removed.94  While 


84  N.  Y.  Misc.  264,  147  N.  Y. 
Supp.  111. 

Although  a  relation  which  was 
meretricious  at  the  outset  is  pre- 
sumed to  continue  so,  slight  cir- 
cumstances are  sufficient  to  show  a 
change  hi  the  minds  of  the  parties 
respecting  their  connection,  which 
will  raise  the  presumption  of  mar- 
riage. Edelstein  v.  Brown,  95 
S.  W.  Rep.  (Tex.  Civ.  App.)  1126. 

Where  the  relation  between  a 
man  and  a  woman  was  illicit  at 
its  commencement,  the  presump- 
tion is  that  it  so  continued.  In 
re  Fuller,  250  Pa.  78,  95  Atl.  Rep. 
382. 

•  Where  it  appears  that  a  man  and 
woman  at  the  outstart  began  to 
live  in  concubinage,  the  presump- 
tion of  fact  is  that  they  so  con- 
tinued until  a  different  mode  of  life 
is  proven.  Cave  v.  Cave,  101  S.  C. 
40,  85  S.  E.  Rep.  244. 

"The  cohabitation,  apparently 
decent  and  orderly,  of  two  per- 
sons opposite  in  sex,  raises  a  pre- 
sumption of  more  or  less  strength 
that  they  have  been  duly  married. 
While  such  cohabitation  does  not 
constitute  marriage,  it  tends  to 
prove  that  a  marriage  contract 
has  been  entered  into  by  the  par- 


ties." In  re  Watson,  175  App. 
Div.  956,  161  N.  Y.  Supp.  875 
(quoting  Gall,  v.  Gall.  114  N.  Y. 
109,  21  N.  E.  Rep.  106). 

93  And  especially  where  the  ques- 
tion is  on  the  legitimacy  of  issue; 
see  Caujolle  v.  Feme,  23  N.  Y.  90, 
affi'g  26  Barb.  177,  4  Bradf.  28. 

An  agreement  to  present  cohabi- 
tation and  a  future  marriage  when 
more  convenient  is  not  enough  to 
establish  a  common-law  marriage. 
In  re  Maher,  204  111.  25,  68  N.  E. 
Rep.  159. 

Evidence  of  cohabitation  must 
be  supplemented  with  evidence  of 
matrimonial  intent,  in  order  to 
prove  the  marriage.  White  v. 
White,  82  Cal.  427,  23  Pac.  Rep. 
276,  7  L.  R.  A.  799. 

94  O'Gara  v.  Eisenlohr,  38  N.  Y. 
296;  Rose  v.  Clark,  8  Paige,  574, 
581,  and  cases  cited. 

Where  the  relationship  was  meri- 
tricious  in  its  inception  it  is  pre- 
sumed to  have  so  continued  until 
the  cohabitation  became  hi  the 
eyes  of  the  law  matrimonial  in  its 
intent  and  character,  which  intent 
and  character  may  be  shown  by 
direct  or  circumstantial  proof. 
Howard  v.  Kelly,  111  Miss.  285, 
71  So.  Rep.  391. 


258 


ACTIONS    BY    AND    AGAINST   HEIRS   AND 


the  mere  removal  of  the  disability  is  not  enough  to  purge 
the  meretricious  character,  even  when  coupled  with  evidence 
of  a  prior  promise  to  marry  after  its  removal,95  evidence  that 
the  parties  recognized  the  new  relation,  and  held  themselves 
out  as  man  and  wife,  and  professed  to  be  botmd  by  marital 
ties,  and  thus  exhibited  the  continuation  of  their  cohabita- 
tion upon  a  new  and  different  footing,  is  sufficient.96 

21.  Second  Marriage  During  Absence. 

At  common  law,  marriage,  however  proved,  may  be  dis- 
proved by  evidence  that  one  of  the  parties  was  at  the  time  a 
party  to  a  prior  valid  marriage.97  The  burden  of  proving  the 
prior  marriage  is  on  the  one  who  seeks  by  it  to  impeach  the 
later: 98  but  direct  evidence  of  the  prior  marriage  is  not  es- 


95  Foster  v.  Hawley,  8  Hun,  68. 

A  marriage  illegal  in  its  incep- 
tion cannot  become  valid  except 
by  the  establishment  either  di- 
rectly or  circumstantially  of  an 
actual  contract  of  marriage  after 
the  removal  of  the  impediment 
which  rendered  it  illegal  in  the 
first  instance;  mere  cohabitation 
as  husband  and  wife  is  not  enough. 
Hall  v.  Industrial  Commission, 
165  Wis.  364,  162  N.  W.  Rep.  312. 

«  Hyde  v.  Hyde,  3  Bradf .  509, 
518. 

It  is  sufficient  if  the  acts  and 
declarations  of  the  parties,  their 
reputation  as  married  people  and 
the  circumstances  surrounding 
them  in  their  daily  lives,  naturally 
lead  to  the  conclusion  that,  al- 
though they  began  to  live  together 
as  man  and  mistress,  they  finally 
agreed  to  live  together  as  husband 
and  wife.  Matter  of  Watson, 
175  App.  Div.  956, 161  N.  Y.  Supp. 
875  (quoting  Gall  v.  Gall,  114 
N.  Y.  109,  21  N.  E.  Rep.  106). 


97  Blossom  v.  Burritt,  37  N.  Y. 
434;  Emerson  v.  Shaw,  1  L.  &  Eq. 
Rep.  635  (N.  H.,  Mar.,  1876). 

It  is  not  sufficient  simply  to 
prove  the  prior  marriage  and  rest 
upon  the  presumption  of  con- 
tinuance. Fagin  v.  Fagin,  151 
N.  Y.  Supp.  809,  88  Misc.  304. 

Where  a  marriage  is  assailed  on 
the  ground  that  a  former  husband 
or  wife  is  still  alive,  the  prima  facie 
presumption  of  the  continuance 
of  life  of  the  former  husband  or 
wife  is  outweighed  by  the  presump- 
tions of  validity  of  the  second 
marriage.  Wilcox  v.  Wilcox,  171 
Cal.  770,  155  Pac.  Rep.  95. 

98  Patterson  v.  Gaines,   6  How. 
U.  S.  550.    But  evidence  of  an  ad- 
mission by  such  party  that  he  was 
guilty   of   bigamy   in   the   second 
marriage  (Gaines  v.  Relf,  12  How. 
U.  S.  472,  534),  or  that  his  first 
wife  was  then  living  (1  Bish.  Mar. 
&    D.,    §  455),    is    not    sufficient. 
When  a  marriage  has  been  consum- 
mated   in    accordance    with    the 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


259 


forms  of  law  it  is  presumed  that 
no  legal  impediments  existed  to 
the  parties  entering  into  such  mar- 
riage, and  the  fact,  if  shown,  that 
either  or  both  of  the  parties  have 
been  previously  married,  and  that 
such  wife  or  husband  of  the  first 
marriage  is  still  living,  does  not 
destroy  the  prima  facie  legality  of 
the  last  marriage.  The  presump- 
tion in  such  a  case  is  that  the 
former  marriage  has  been  legally 
dissolved  and  the  burden  that  it 
has  not  rests  upon  the  party  seek- 
ing to  impeach  the  last  marriage. 
Wenning  v.  Teeple,  144  Ind.  189, 
193,  41  N.  E.  Rep.  600;  Boulden 
v.  Mclntire,  119  Ind.  574;  Teter  v. 
Teter,  101  Ind.  129;  Yates  v.  Hous- 
ton, 3  Tex.  433;  Dixon  v.  People, 
18  Mich.  84;  Harris  v.  Harris,  8 
111.  App.  57;  Town  of  Greens- 
borough  v.  Town  of  Underbill,  12 
Vt.  604;  Rex  v.  Inhabitants  of 
Twyning,  2  B.  &  Aid.  386;  Squire 
v.  State,  46  Ind.  459;  Klein  v. 
Ladyman,  29  Mo.  259. 

The  presumption  is  in  favor  of 
the  validity  of  a  second  marriage 
and  the  burden  rests  upon  the 
person  asserting  a  prior  marriage 
to  prove  it.  Nixon  v.  Wichita 
Land,  etc.,  Co.,  84  Tex.  408,  19 
S.  W.  Rep.  560. 

One  who  attacks  the  legality  of  a 
second  marriage  which  is  admitted, 
has  the  burden  of  proving  a  prior 
marriage  and  also  that  it  was  not 
dissolved.  Goldwater  v.  Burnside, 
22  Wash.  215,  60  Pac.  Rep. 
409. 

There  must  be  clear  proof  of  a 
prior  marriage  before  the  second 
marriage  will  be  held  invalid. 


Hager  v.  Brandt,  111  Iowa,  746, 
82  N.  W.  Rep.  1016. 

Where  a  second  marriage  is 
proved  the  presumption  is  that 
the  prior  marriage  was  dissolved, 
and  the  burden  of  proof  to  the 
contrary  is  on  the  party  asserting 
the  prior  marriage.  Maier  v. 
Brock,  222  Mo.  74,  120  S.  W.  Rep. 
1167,  133  Am.  St.  Rep.  513,  17 
Ann.  Gas.  673;  Carroll  v.  Carroll, 
20  Tex.  731;  Howton  v.  Gilpin,  24 
Ky.  Law  Rep.  630,  69  S.  W.  Rep. 
766;  Wenning  v.  Teeple,  144  Ind. 
189,  41  N.  E.  Rep.  600;  Alabama, 
etc.,  R.  Co.  v.  Beardsley,  79  Miss. 
417,  30  So.  Rep.  660,  89  Am.  St. 
Rep.  660;  In  re  Rash,  21  Mont. 
170,  53  Pac.  Rep.  312,  69  Am.  St. 
Rep.  649;  Scott  t>.  Scott,  25  Ky. 
Law  Rep.  1356,  77  S.  W.  Rep. 
1122. 

If  necessary  to  support  the  le- 
gality of  a  second  marriage  it  will 
be*  presumed,  in  the  absence  of 
evidence  to  the  contrary,  that  the 
first  marriage  has  been  legally  dis- 
solved. Hunter  v.  Hunter,  111 
Cal.  261,  43  Pac.  Rep.  746,  52 
Am.  St.  Rep.  180,  31  L.  R.  A.  411; 
Erwin  v.  English,  61  Conn.  502, 
23  A.  753;  Potter  v.  Clapp, 
203  111.  592,  68  N.  E.  Rep.  81,  96. 
Am.  St.  Rep.  322;  In  re  Thewlis, 
217  Perm.  St.  307,  66  App.  Div. 
519;  Thomas  v.  Thomas,  53  Wash: 
297,  101  Pac.  Rep.  865;  Matter  of 
Meehan,  150  N.  Y.  App.  Div.  681, 
135  N.  Y.  Supp.  723;  Coachman 
v.  Sims,  36  Okla.  536, 129  Pac.  Rep. 
845;  Ross  v.  Sparks,  79  N.  J.  Eq. 
649,  83  Atl.  Rep.  1118. 

But,  in  a  case  involving  property 
rights  the  presumption  of  validity 


260 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


of  a  subsequent  marriage  will  not 
be  sufficient  to  overthrow  the  pre- 
sumption of  the  continuing  validity 
of  the  first  marriage,  in  the  absence 
of  evidence  of  a  divorce.  Goodwin 
v.  Goodwin,  113  Iowa,  319,  85 
N.  W.  Rep.  31. 

Where  a  man  has  married  twice, 
and  the  first  marriage  has  been 
proved  by  clear  and  uncontra- 
dicted  evidence,  such  marriage 
can  only  be  avoided  by  proving 
that  he  was  not  the  person  named 
in  the  record  in  evidence,  or  that 
his  first  wife  is  dead,  or  that  the 
first  marriage  was  legally  dis- 
solved by  decree  of  court.  Bow- 
man v.  Little,  101  Md.  273,  61  All. 
Rep.  223,  657,  1084. 

Proof  of  the  fact  that  there  was 
a  prior  marriage  ceremony  and 
nothing  more,  is  not  sufficient  to 
invalidate  a  subsequent  marriage. 
There  must  be  proof  that  the 
prior  marriage  was  legal,  that  the 
parties  to  it  were  legally  competent 
to  contract  in  marriage.  United 
States  P.  Green,  98  Fed.  Rep.  63. 

The  presumption  of  the  validity 
of  a  second  marriage  is  greatly 
strengthened  by  the  uninterrupted 
cohabitation  of  the  parties  to  it 
for  more  than  twenty  years  and 
until  the  death  of  one  of  them,  the 
attitude  of  fheir  friends,  relations 
and  acquaintances,  the  birth  of 
children  and  the  attitude  of  the 
alleged  former  wife.  Matter  of 
Meehan,  150  N.  Y.  App.  Div.  681, 
135  N.  Y.  Supp.  723. 

Where  there  has  been  a  second 
marriage  with  issue  the  court  will, 
for  the  purpose  of  legitimatizing 
the  issue,  presume  that  the  first 


marriage  was  legally  dissolved 
prior  to  the  second,  in  the  absence 
of  evidence  to  the  contrary.  Mat- 
ter of  Grande,  80  Misc.  450,  141 
N.  Y.  Supp.  535. 

The  presumption  in  favor  of  a 
second  marriage  will  not  be  over- 
thrown by  proof  of  the  prior  mar- 
riage, unattended  with  proof  that 
there  has  been  no  divorce  and 
that  the  partner  in  the  prior  mar- 
riage is  still  alive.  Roxbury  v. 
Bridgewater,  85  Conn.  196,  82 
Atl.  Rep.  193. 

The  burden  of  proof  is  on  the 
party  assailing  a  marriage  on  the 
ground  that  a  former  husband  or 
wife  is  still  alive,  to  show  not  only 
the  former  marriage  but  also  that 
it  has  not  been  dissolved  by  death 
or  judicial  decree.  Wilcox  v.  Wil- 
cox,  171  Cal.  770, 155  Pac.  Rep.  95. 

The  law  is  so  positive  in  requir- 
ing the  party  who  asserts  the 
illegality  of  a  marriage  to  take  the 
burden  of  proving  it  that  such  re- 
quirement obtains  even  though  it 
involves  the  proving  of  a  negative, 
and  although  it  is  shown  that  one 
of  the  parties  had  contracted  a 
previous  marriage,  and  the  exist- 
ence of  the  wife  or  husband  of  the 
former  marriage  at  the  tune  of  the 
second  marriage  is  established  by 
proof,  it  is  not  sufficient  to  over- 
come the  presumption  of  the  va- 
lidity of  the  second  marriage,  the 
law  presuming  rather  that  the  first 
marriage  has  been  dissolved  by 
divorce,  hi  order  to  sustain  the 
second  marriage.  Estes  v.  Merrill, 
121  Ark.  361,  181  S.  W.  Rep.  136. 

Whenever  a  previous  marriage  is 
relied  upon  to  avoid  a  subsequent 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


261 


sential;  it  may  be  proved  by  cohabitation  and  repute.99 
The  principle  of  the  statute  of  bigamy  of  1604, 1  which  ex- 
cepted  from  the  offense  cases  of  second  marriage  contracted 
while  the  former  husband  or  wife  was  beyond  seas  for  seven 
years,  or  was  absent  and  not  known  to  be  living  for  that 
period,  was  early  adopted  by  the  common-law  courts,  by 
analogy,  as  furnishing  a  presumption  of  death  in  such  cases, 
for  civil  purposes,  and  this  rule  has  been  generally  followed 
in  this  country,  the  time  being  shortened  in  some  States  by 
statute,  as  in  New  York  to  five  years,2  where,  also,  a  further 


marriage,  there  exists  a  presump- 
tion in  favor  of  the  latter;  and  satis- 
factory proof  of  the  former  mar- 
riage is  required  to  overcome  this 
presumption.  State  v.  Collins 
(Del.  Gen.  Sess.),  99  Atl.  Rep.  87. 

There  is  a  presumption  and  a 
very  strong  one  in  favor  of  the 
legality  of  a  marriage  regularly 
solemnized.  The  burden  is  upon 
the  party  so  asserting  to  prove 
that  a  first  marriage  had  not  ended 
before  the  second  marriage  oc- 
curred. In  re  Hughson,  173  Cal. 
448,  160  Pac.  Rep.  548. 

The  burden  is  upon  the  person 
who  asserts  the  illegality  of  a 
marriage  to  prove  such  illegality 
and,  where  a  second  marriage  is 
shown  as  a  fact  a  strong  presump- 
tion exists  in  favor  of  its  legality 
which  is  not  overcome  by  the  mere 
proof  of  a  prior  marriage.  Jones  v. 
Jones,  164  Pac.  Rep.  (Okl.)  463. 

Proof  of  a  subsequent  marriage 
alone  makes  out  a  printa  facie 
case  as  to  its  validity.  To  over- 
come this  prima  facie  case,  proof  of 
a  former  marriage  is  required  and 
also  evidence  from  which  it  may 
be  concluded  that  it  has  not  been 


dissolved  by  death  or  divorce. 
Schaffer  v.  Richardson,  125  Md. 
88,  93  Atl.  Rep.  391,  L.  R.  A., 
1915,  E.  186. 

99  Brower  v.  Bowers,  1  Abb.  Ct. 
App.  Dec.  214,  s.  c.,  9  N.  Y.  Leg. 
Obs.  196. 

Where  a  man  and  woman  are 
legally  married,  the  woman  con- 
tinues to  be  the  man's  wife,  not- 
withstanding she  subsequently  con- 
tracts a  bigamous  marriage  with 
another  man  during  his  life,  and 
upon  the  death  of  her  first  husband 
is  entitled  to  the  widow's  rights  in 
his  estate.  Estes  v.  ^Merrill,  121 
Ark.  361,  181  S.  W.  Rep.  136. 

1 2  Ja.  I,  ch.  11  (3  Stat.  at  L., 
A.  D.  1770,  p.  9),  §  2. 

2  Domestic  Relations  Law,  §  6. 

In  California  which  has  a  stat- 
ute similar  to  the  New  York  stat- 
ute, the  second  marriage  remains 
valid  until  annulled  by  a  compe- 
tent court.  In  re  Harrington,  140 
Cal.  244,  294,  73  Pac.  Rep.  1000, 
98  Am.  St.  Rep.  51;  Gall  ».  Gall, 
114  N.  Y.  109,  21  N.  E.  Rep.  106. 

The  presumption  that  a  second 
marriage  is  legal  is  stronger  than 
the  presumption  that  the  former 


262 


ACTIONS   BY   AND    AGAINST   HEIRS    AND 


provision  has  been  adopted  to  the  effect  that  such  a  second 
marriage  shall  not  be  void,  as  formerly,  if  it  appear  that  the 
party  to  both  marriages  contracted  the  second  after  the  lapse 
of  that  period,  without  having  meanwhile  known  that  the 
absentee  was  living,3  and  in  good  faith  believing  him  dead.4 
Under  that  provision  the  court  will  not  adjudge  it  void  in  a 


spouse  of  one  of  the  parties  who 
has  not  been  heard  of  for  five  years 
was  living  at  the  time  of  the  second 
marriage.  Cash  v.  Cash,  67  Ark. 
278,  54  S.  W.  Rep.  744. 

3  Domestic  Relations  Law,  §7; 
Cropsey  v.  McKinney,  30  Barb.  47, 
58. 

4  Whether   the   presumption   of 
innocence  avails  to  require  evidence 
to  the  contrary — compare  Valleau 
v.  Valleau,  6  Paige,  209;  Spears  v. 
Burton,  31  Miss.  555;  O'Gara  v. 
Eisenlohr,  38  N.  Y.  296;  Fleming 
v.  People,  27  N.  Y.  334. 

A  marriage  by  a  woman  after 
her  first  husband  had  disappeared 
for  over  seven  years  is  valid.  Gil- 
roy  v.  Brady,  195  Mo.  205,  93  S.  W. 
Rep.  279;  Burkhardt  v.  Burkhardt, 
63  N.  J.  Eq.  479,  52  Atl.  Rep. 
296. 

The  presumption  of  innocence 
is  stronger  than  the  presumption 
of  the  continuation  of  life,  and 
rather  than  hold  a  second  marriage 
invalid  and  that  the  parties  have 
committed  a  crime  or  been  guilty 
of  immorality,  the  courts  will  in- 
dulge in  a  presumption  of  death  in 
less  than  seven  years.  Hunter  v. 
Hunter,  111  Cal.  261,  43  Pac.  Rep. 
757,  31  L.  R.  A.  411,  52  Am.  St. 
Rep.  180. 

Where  a  woman  marries  before 
the  expiration  of  seven  years  after 


the  disappearartce  of  her  first  hus- 
band the  presumption  of  her  in- 
nocence of  the  crime  of  bigamy 
will  overcome  the  presumption  of 
life  of  her  first  husband.  Cooper  i>. 
Cooper,  86  Ind.  75;  Lockhart  r. 
White,  18  Tex.  102;  Klein  r.  Laud- 
man,  29  Mo.  259;  Smith  v.  Knowl- 
ton,  11  N.  H.  191;  Wagoner  v. 
Wagoner,  128  Mich.  635,  87  N.  W. 
Rep.  898;  Smith  v.  Fuller  (la.),  108 
N.  W.  Rep.  765;  Murchison  v. 
Green,  128  Ga.  339,  57  S.  E.  Rep. 
709,  11  L.  R.  A.  N.  S.  702. 

Where  a  woman  marries  after  a 
period  of  years  has  elapsed  since  her 
husband  disappeared,  her  second 
marriage  will  not  be  valid  unless 
she  can  prove  that  her  first  hus- 
band's absence  is  unexplained, 
that  she  has  made  diligent  search 
for  him  in  the  usual  channels,  and 
has  not  heard  of  or  from  him  in 
any  way  and  has  no  way  of  know- 
ing what  became  of  him.  Alixanian 
r.  Alixanian,  28  N.  Y.  Misc.  638, 
59  N.  Y.  Supp.  1068. 

Where  a  husband  leaves  his  wife 
and  goes  to  another  jurisdiction 
and  never  communicates  with  her, 
and  after  five  years  marries  again, 
the  presumption  is  that  at  the  tune 
of  his  second  marriage  he  believed 
his  first  wife  to  be  living.  In  re 
Richards,  133  Cal.  524,  65  Pac. 
Rep.  1034. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  263 

collateral  action  involving  only  questions  of  property;  5  and 
after  the  death  of  one  of  the  parties  to  the  second  marriage, 
that  marriage  is  good  for  the  purpose  of  succession  and 
legitimacy; 6  and  even  during  the  life  of  both,  it  may  be 
sustained  for  those  purposes,  by  proof  that  the  former 
husband  or  wife  was  absent,  and  not  heard  of  for  seven  years, 
and  that,  after  the  lapse  of  that  time,  the  second  marriage 
occurred;  or  that  previous  cohabitation  and  repute  were  con- 
tinued under  circumstances  sufficient  to  raise  a  clear  pre- 
sumption of  marriage  on  grounds  subsequent  in  point  of 
time  to  the  legally  presumable  death  of  the  former  husband 
or  wife.7  Upon  proof  that  the  absentee  was  reputed  in  the 
family,  before  the  lapse  of  that  period,  to  be  dead,  or  other 
presumptive  evidence,  the  jury  may  find  death  to  have  oc- 
curred before  the  second  marriage.8  But  absence  for  less 
than  seven  years,  without  other  evidence  raising  the  pre- 
sumption of  death,  will  not  suffice;  for  the  technical  pre- 
sumption of  innocence  does  not  avail  against  facts  raising  a 
presumption  of  guilt  on  the  one  hand,  and  negativing  the 
existence  of  any  motive  for  remarriage  on  the  other  hand.9 

22.  Rebutting  Evidence  of  Marriage. 

Where  the  only  evidence  of  marriage  is  indirect,  or  where 
evidence  of  actual  marriage  is  conflicting,  declarations  and 
conduct  of  either  or  both  parties  inconsistent  with  the  matri- 
monial character,  are  competent,  within  the  limits  above 

5  Cropsey  v.  McKinney  (above) ;  married  the  husband  of  another, 

compare      O'Gara    v.      Eisenlohr  Cooper  v.  McCoy,   116  Ark.  501, 

(above),  and  Spicer  v.  Spicer,  16  173  S.  W.  Rep.  412. 

Abb.  Pr.  (X.  S.)  112,  and  note.  « 1  Bish.  Mar.  &  D.,  §  114. 

Where  a   marriage  is  duly   sol-  7  Jackson  v.  Claw,  18  Johns.  346, 

emnized  under    the  forms  of  law,  350. 

but  is  void  because  of  the  fact  that  8  Cochrane    r.    Libby,    18    Me. 

the  man  has  a  former  wife  living,  (6  Shepl.)  39. 

the  second  wife  is  not  entitled  at  'O'Gara  v,  Eisenlohr,  38  N.  Y. 

his  death  to  a  division  of  the  prop-  296.    Contra,  see  1  Bish.  Mar.  &  D., 

erty  which  she  herself  helped  to  ac-  §  453,    and   cases   cited;   and   see 

cumulate     even     though    it     was  Kelly    v.    Drew,    12    Allen,    107, 

through  no  fault  of  hers  that  she  109.- 


264 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


stated,  unless  the  issue  is  upon  legitimacy.  Thus  declara- 
tions of  either  that  they  were  not  married,  the  fact  that  the 
woman  had  sued,  or  been  sued,  in  her  maiden  name,10  that 
they  terminated  cohabitation  and  separated,  without  further 
claim  to  matrimonial  relation,11  or  that  each  married  other 
persons,12  are  sufficient  to  go  to  the  jury  as  negativing  the 


10Scudder  v.  Gori,  18  Abb.  Pr. 
223,  s.  c.,  less  fully,  3  Robt.  661. 

Where  a  decedent's  marriage 
was  in  issue,  testimony  of  his 
mother  that  he  told  her  while  he 
was  still  living  with  a  woman  that 
he  was  not  married  to  her,  is  clearly 
competent  and  'highly  important 
both  as  a  part  of  the  res  gestce  and 
secondly  because  it  involves  a 
matter  of  pedigree.  Matter  of 
Farley,  155  N.  Y.  Supp.  63,  91 
Misc.  185. 

"Jackson  v.  Claw,  18  Johns. 
346.  An  advertisement  forbidding 
trust,  appearing  in  the  newspaper 
at  their  domicile,  immediately 
after  separation,  has  been  held  com- 
petent, the  original  manuscript  be- 
ing lost.  Jewell  v.  Jewell,  1  How. 
(U.  S.)  219,  232;  but  the  better 
opinion  is  that  there  must  be  evi- 
dence concerning  one  of  the  par- 
ties with  it. 

Proof  of  matrimonial  cohabita- 
tion is  at  best  only  prima  facie 
proof  of  marriage;  the  presumption 
may  be  rebutted.  Costill  v.  Hill, 
55  N.  J.  Eq.  479,  40  Atl.  Rep.  32; 
Wallace's  Case,  49  N.  J.  Eq.  530, 
25  Atl.  Rep.  260. 

Permanent  separation  after  co- 
habitation will  overcome  the  pre- 
sumption of  marriage.  Moore  v. 
Heineke,  119  Ala.  627,  24  So.  Rep. 
374. 


Proof  that  the  cohabitation  was 
not  matrimonial  will  rebut  the 
presumption  of  marriage.  LeSuer 
v.  LeSuer,  122  Minn.  407,  142  N. 
W.  Rep.  593. 

12  Niles  v.  Sprague,  13  Iowa,  202. 

The  presumption  of  marriage 
arising  from  cohabitation  is  over- 
come by  proof  of  a  later  formal 
marriage  by  one  of  the  parties. 
Bowman  v.  Little,  101  Md.  273, 
61  Atl.  Rep.  223,  657,  1084. 

Where  there  is  a  presumption 
of  marriage  from  cohabitation  and 
repute  it  will  be  overcome  by  proof 
of  a  subsequent  formal  marriage 
by  either  party  to  a  third  person. 
Norman  v.  Goode,  113  Ga.  121, 
38  S.  E.  Rep.  317. 

The  presumption  of  marriage 
from  cohabitation  is  rebutted  by 
proof  of  a  subsequent  separation, 
and  the  marriage  of  one  of  the  par- 
ties; but  the  question  is  neverthe- 
less one  for  the  jury.  Moore  v. 
Heineke,  119  Ala.  627,  24  So.  Rep. 
374. 

Where  a  wife  lived  many  years 
with  her  husband  and  bore  him 
children,  admissions  by  her  that 
she  had  formerly  gone  through  a 
marriage  ceremony  with  another 
man  with  whom  she  never  lived 
and  from  whom  she  had  not  ob- 
tained a  divorce,  are  not  sufficient 
to  prove  a  valid  prior  marriage. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  265 

presumption  from  mere  habit  and  repute.  The  effect  even 
of  such  evidence  of  cohabitation  and  repute  as,  standing 
alone,  would  establish  marriage,  may  be  nullified  by  evidence 
that  the  parties  afterward  formally  solemnized  a  marriage 
under  circumstances  showing  that  their  motive  was  to  legal- 
ize their  connection,  for  this  conclusively  proves  that,  hi 
their  judgment,  it  was  previously  illicit.13  The  moral  and 
social  character  of  the  parties  themselves  is  relevant  as 
bearing  on  the  question  of  the  matrimonial  or  meretricious 
character  of  the  connection,14  though  incompetent  against 
evidence  of  a  ceremonial  marriage.15  But  the  opinion  of  a 
witness  as  to  whether  their  character  rendered  such  a  con- 
nection improbable,  is  not  competent.16  Evidence  of  loose 
oral  denials  by  the  parties  are  of  little  weight  against  other- 
wise clear  and  satisfactory  evidence  of  matrimonial  cohabita- 
tion and  repute; 17  and  mere  declarations  that  the  declarant 
is  unmarried,  made  without  reference  to  a  reputed  relation 
between  the  particular  parties,  are  held  incompetent.18  De- 
nials of  "marriage"  are  inconclusive,  because  they  may  be 

Lau   v.    Lau,    154    N.    Y.    Supp.  than  once,  the  fact  of  a  solemniza- 

107.  tion  should  not  overcome  the  uni- 

13  Shedden  v.  Patrick,  L.  R.   1  versally  recognized  presumption  of 

Sc.  &  D.  App.  470.  legitimate  marriage  which  existed 

A   subsequent   ceremonial  mar-  prior  to  the  ceremony.    Shank  v. 

riage  is  not  inconsistent  with  a  prior  Wilson,   33   Wash.   612,   74   Pac. 

common-law  marriage.      Adger  v.  Rep.  812. 

Ackerman,  115  Fed.  Rep.  124,  52  "Hill  v.  Burger,  3  Bradf.  432, 

C.  C.  A.  568.  449,   s.  p.,  Steuart  v.   Robertson, 

A   marriage   will   be   presumed  L.  R.  2  Sc.  App.  494,  520,  s.  c.,  13 

to  have  existed  before  it  was  sol-  Moak's  Eng.  165,  191. 

emnized  where  there  is  proof  of  15Per  BRADFORD,  Surr.  Hill  v. 

matrimonial  cohabitation,  declara-  Burger  (above), 

tions  of  the  parties,  and  reputation  M  Such  testimony  was    held  to 

that   they    were    man   and   wife,  have  no  weight,  in  Gaines  v .  New 

Betsinger  v.  Chapman,  88  N.  Y.  Orleans,  6  Wall.  706. 

487.  17Tummalty    v.    Tummalty,    3 

As  there  are  various  reasons,  re-  Bradf.  369. 

ligious  and  otherwise,  which  fre-  18Van    Tuyl    v.    Van    Tuyl,    8 

quently  prompt  men  and  women  Abb.  Pr.  (N.  S.)  5,  s.  c.,  57  Barb, 

to  solemnize  their  marriage  more  235. 


266 


ACTIONS   BY    AND    AGAINST   HEIRS   AND 


meant  of  a  ceremonial  marriage,  while  the  parties  were  actu- 
ally man  and  wife.19 

23.  Foreign  Law. 

The  written  law  of  another  State,  or  of  a  foreign  country, 
may  be  proved  in  the  manner  stated,  c.  3,  §  9  of  this  volume. 
The  unwritten  law  may  be  proved  by  calling  as  a  witness  one 
practically  conversant  with  it,  either  as  a  lawyer  in  that 
country,  or  as  having  had  a  course  of  legal  duty  to  perform 
there  in  respect  to  marriage,  such  as  to  make  it  probable 
that  he  has  made  himself  acquainted  with  the  law  on  that 
subject.  One  who  is  not  so  qualified,  and  who  has  acquired 
his  knowledge  solely  from  books,  is  not  competent.20 

III.  ISSUE  OR  FAILURE  OF  ISSUE 

24.  Burden  of  Proof. 

In  the  absence  of  evidence  neither  birth  of  children,  nor 


19  Where  there  is  ample  evidence 
of  long  and  uninterrupted  cohabi- 
tation and  repute,  evidence  of  the 
declaration  of  the  man  that  they 
were  not  married,  and  his  testi- 
mony that  they  were  never  mar- 
ried, since  they  may  be  construed 
as  referring  to  a  ceremonial  mar- 
riage, are  not  enough  to  take  the 
case  from  the  jury.  Richard  v. 
Brehm,  73  Perm.  St.  140,  s.  c.,  13 
Am.  Rep.  733. 

*°A  practicing  lawyer  of  an- 
other State  is  competent  to  testify 
as  to  the  requisites  of  a  valid  mar- 
riage in  that  State.  Jackson  v. 
Jackson,  82  Md.  17,  33  Atl.  Rep. 
317,  16  Moak's  Eng.  591,  n.  and 
cases  cited;  Rose.  N.  P.  138,  139;  1 
Bish.  Mar.&  D.  §§409^30,521-536. 

Where  there  is  no  evidence  as  to 
the  marriage  law  of  a  foreign  State, 


it  will  be  presumed  that  the  req- 
uisites to  constitute  marriage 
there  will  be  the  same  as  in  the 
forum.  Hynes  v.  McDermott,  91 
N.  Y.  451,  43  Am.  Rep.  677;  Mat- 
ter of  Grande,  80  Misc.  450,  141 
N.  Y.  Supp.  535;  People  v.  Loomis, 
106  Mich.  250,  64  N.  W.  Rep.  18. 

A  marriage  performed  in  an- 
other State  will  be  presumed  to  be 
in  accordance  with  the  law  of  that 
State.  Dale  v.  State,  88  Ga.  552,  15 
S.  E.  Rep.  287;  Sokel  v.  People, 
212  111.  238,  72  N.  E.  Rep.  382. 

One  who  for  the  purpose  of  evad- 
ing the  laws  of  his  State  goes 
aboard  a  vessel  and  is  married 
while  at  sea  has  the  burden  of 
proving  that  his  marriage  is  valid. 
Norman  t;.  Norman,  121  Cal.  620, 
54  Pac.  Rep.  143,  66  Am.  St. 
Rep.  74,  42  L.  R.  A.  343. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


267 


the  contrary,  is  presumed.    But  slight  evidence  may  suffice.21 
One  claiming  by  collateral  descent  must  show  who  was  last 


"Emerson  ».  White,  29  N.  H. 
(9  Fost.)  491,  497,  and  cases  cited. 

While  an  unexplained  absence 
for  seven  years  raise  a  presump- 
tion of  death,  it  does  not  raise  a 
presumption  of  death  with  issue. 
George  v.  Clark,  186  Mass.  426, 
71  N.  E.  Rep.  809. 

There  is  no  presumption  of  law 
that  one  who  has  disappeared  for 
more  than  seven  years  left  a  sur- 
viving wife,  child  or  children. 
Nehring  v.  McMurrian,  53  S.  W. 
Rep.  (Tex.  Civ.  App.)  381. 

One  who  was  eighteen  years  of 
age  and  unmarried  when  last  heard 
from,  and  who  was  not  heard  from 
for  twenty  years  will  not  be  pre- 
sumed to  have  died  intestate,  un- 
married or  without  children.  John- 
son v.  Johnson,  170  Mo.  34,  70 
S.  W.  Rep.  241,  59  L.  R.  A.  748. 
See  also  Vought  v.  Williams,  120 
N.  Y.  253,  24  N.  E.  Rep.  195, 
8  L.  R.  A.  591, 17  Am.  St.  Rep.  634. 

Under  Civ.  Code,  §  55,  a  legal 
solemnizing  of  a  marriage  is  es- 
sential in  order  to  validate  a  mar- 
riage from  repute.  In  re  Elliott, 
165  Cal.  339,  132  Pac.  Rep.  439. 

A  presumption  of  marriage  will 
not  be  raised  where  it  would  in- 
volve both  parties  to  it  in  the 
crime  of  bigamy.  Foster  v.  Haw- 
ley,  8  Hun  (X.  Y.),  68. 

In  order  to  establish  a  common- 
law  marriage  between  first  cousins 
it  must  be  proved  that  the  mar- 
riage existed  prior  to  July  4,  1909, 
when  a  law  against  marriage  be- 
tween first  cousins  was  passed. 


In  re  Wittick,  164  Iowa,  485,  145 
N.  W.  Rep.  913;  Drummond  v. 
Irish,  52  Iowa,  41,  2  N.  W.  Rep. 
622.  » 

As  the  law  favors  legitimacy  and 
innocence,  a  second  marriage  will 
be  presumed  to  be  valid  until 
proved  otherwise.  Bowman  v. 
Little,  101  Md.  273,  61  Atl.  Rep. 
223,  657,  1084;  Parsons  v.  Grand 
Lodge,  A.  O.  U.  W.,  108  Iowa,  6, 
78  N.  W.  Rep.  676. 

In  order  to  legitimatize  issue  or 
in  the  interest  of  order  and  de- 
cency, the  court  will  in  a  proper 
case  presume  marriage  from  cohabi- 
tation and  reputation  alone,  but 
in  a»case  where  to  presume  such 
marriage  one  party  will  neces- 
sarily stand  convicted  of  bigamy, 
the  presumption  of  innocence  pre- 
vails over  the  presumption  of  mar- 
riage. Matter  of  Eichler,  84  N.  Y. 
Misc.  667,  146  N.  Y.  Supp.  846. 

Where  there  are  conflicting  pre- 
sumptions of  unequal  weight,  as 
that  of  the  continuance  of  life  and 
that  of  innocence  of  crime,  the 
stronger  will  prevail.  But  where 
the  dispute  is  whether  a  second  or  a 
third  marriage  is  valid,  the  con- 
flicting presumptions  are  equal  and 
each  involves  the  commission  of  a 
crime,  and  under  these  circum- 
stances will  be  given  to  either. 
Palmer  v.  Palmer,  162  N.  Y.  130, 
56  N.  E.  Rep.  501. 

Where  two  alleged  marriages 
compete,  and  one  of  them  is  proven 
as  a  fact,  whether  by  direct  or 
circumstantial  evidence,  the  other 


268  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

entitled,  and  then  prove  his  death  without  issue;  next  prove 
all  the  different  links  in  the  chain  of  descent  which  will 
show  that  he  and  the  claimant  descended  from  the  same 
common  ancestor,  together  with  the  extinction  of  all  those 
lines  of  descent  which  could  claim  any  preference  to  the 
claimant.  He  must  prove  the  marriages,  births  and  deaths, 
and  the  identity  of  persons  necessary  to  fix  title  in  himself, 
and  the  extinction  of  others  who  would  have,  if  in  existence, 
title.28  This  is  done  by  proving  the  marriages,  births  and 
deaths  necessary  to  complete  his  title,  and  showing  the 
identity  of  the  several  parties.29  He  must  prove  that  all  the 
intermediate  heirs  between  himself  and  the  ancestor  from 
whom  he  claims,  are  dead,  without  issue.30  The  non- 
existence  of  issue  is  a  fact  separate  from  death,  in  support  of 
which  some  evidence  must  be  given.31 

25.  Presumptions  as  to  Failure  of  Issue. 

In  the  absence  of  evidence,  the  presumption  is  that  a  per- 
son dying  intestate,  left  heirs; 32  and  the  mere  fact  that  the 
death  occurred  under  twenty-one,33  or  that  it  is  only  pre- 
sumed from  the  lapse  of  time,  is  not  enough  to  raise  a  pre- 
sumption that  he  left  no  issue,34  except  after  great  lapse  of 
time,  and  only  for  the  purpose  of  setting  that  branch  of  the 
family  out  of  the  case; 35  but  slight  evidence  of  death  with- 

cannot  be  left  to  stand  upon  the  28  Sprigg  v.  Moale,  28  Md.  497, 

mere  presumption  founded  on  co-  505,  3  Washb.  R.  P.,  4th  ed.  18 

habitation  and  repute.    Jenkins  v.  (38). 

Jenkins,  83  Ga.  283;  9  S.  E.  Rep.  29  Emerson  ».  White  (above). 

541,  20  Am.  St.  Rep.  316;  Spencer  v.  30  Richards  v.  Richards,  15  East, 

Spencer,  84  N.  Y.  Misc.  264,  147  294,  n. 

N.  Y.  Supp.  Ill;  In  re  Maher,  204  31  Sprigg  v.  Moale  (above). 

III.  25,  68  N.  E.  Rep.  159.  32  Harvey  v.  Thornton,   14  111. 

The  declaration  of  the  parties  217. 

while  living  together  are  admissible  "  Clark  v.  Trinity  Ch.,  5  Watts 

as  they  characterize  the  circum-  &  S.  266,  271. 

stance    of    cohabitation.      Stack-  34  Sprigg  v.  Moale  (above), 

house  v.  Stotenbur,  22  N.  Y.  App.  35  Rowe  v.  Haslancl,  1  W.  Black. 

Div.  312,  47  N.  Y.  Supp.  940.  404,  MANSFIELD,  Ch.  J. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES  269 

out  issue,  may  after  great  lapse  of  time,  be  sufficient; 36  and 
unsuccessful  inquiry  for  children,  if  any,  at  places  where,  if 
such  had  existed,  information  could  be  obtained,  will  suffice 
to  sustain  a  verdict  in  such  case.37 

26.  Escheat. 

Every  citizen  dying  is  presumed  to  leave  some  one  en- 
titled to  claim  as  his  heir,  however  remote,  unless  one  or 
other  of  the  only  two  exceptions  known  to  our  law,  alienage 
or  illegitimacy,  should  intervene.  The  title  of  the  State,  by 
reason  of  defect  of  heirs,  can  be  established  by  actual  proof 
of  the  fact  of  alienage  or  of  illegitimacy,  or  in  certain  cases 
by  proof  of  reputation  of  either  of  those  facts,  provided  such 
proof  be  direct  and  positive,  founded  upon  inquiry,  adver- 
tisements, personal  family  knowledge,  or  actual  declaration 
of  the  last  person  seized,  or  of  those  from  whom  his  title 
descended.  Mere  hearsay  reputation  of  the  general  fact 
of  defect  of  relations  and  heirs  is  not  sufficient.38 

27.  Possibility  of  Issue  Extinct. 

The  highest  authorities  in  medical  jurisprudence  sustain 
the  proposition  that  a  woman  beyond  the  age  of  fifty-five 
has  no  possibility  of  issue.  Extinction  of  possibility  may  be 
presumed  as  a  matter  of  fact  at  an  earlier  period,  varying 

M  Such  as  proof  that  his  family,  37  King  v.  Fowler,  11  Pick.  302. 

if  any,  or  his  intimate  acquaint-  38  People    v.    Fulton    Fire    Ins. 

ances  for  many  years,  never  heard  Co.,  25  Wend.  205. 

him  speak  of  wife,  children,  etc.  In  an  action  in  ejectment  brought 

Jackson  v.  Etz,  5  Cow.  320;  Doe  by  the  State  claiming  title  by  es- 

v.  Griffin,  15  East,  293;  McComb  cheat,  the  testimony  of  a  niece  and 

v.  Wright,  5  Johns.  Ch.  263.    So  nephew  of  the  decedent's  wife  that 

of  proof  of  circumstances  showing  the  decedent  who  owned  the  land 

that   the   absentee  was   a   young  had  repeatedly  told  them  that  he 

man  strongly  likely  to  communicate  had  no  brothers  or  sisters  or  other 

with  his  family  if  living,  and  to  living    relatives,    was    competent 

inform  them  if  he  were  ever  mar-  proof.      People    v.    Tuthill,     176 

ried.     In   re   Webb's   Estate,   Ir.  App.  Div.  631,  163  N.  Y.  Supp. 

R.  5  Eq.  235.  843. 


270 


ACTIONS   BY    AND    AGAINST   HEIRS   AND 


with  the  evidence  as  to  length  of  married  life  and  condition 
of  health.39 

28.  Registry  of  Birth  or  Baptism. 

The  fact  of  birth  may  be  proved  by  an  official  registry  of 
birth  kept  pursuant  to  statute,  or  by  a  registry  of  baptism 
shown  to  have  been  kept  in  the  manner  hereafter  stated; 40 
but  a  mere  registry  of  baptism  is  not,  as  an  official  registry 
of  birth  may  be,  evidence  of  the  date  of  birth,  though  stated 
in  it,41  further  than  to  show  that  it  must  have  been  prior  to 
the  date  recorded  as  that  of  baptism, — that  is  to  say,  it 
only  proves  that  the  child  was  in  existence  at  the  time  of 
the  ceremony,42 — unless  the  statement  of  the  time  of  birth 
is  shown  to  have  been  made  by  direction  of  a  member  of  the 
family  since  deceased,  so  as  to  bring  it  within  the  rule  ad- 
mitting declarations  as  to  facts  of  pedigree.43 


"  In  re  Widdow's  Trusts,  L.  R. 
11  Eq.  408;  In  re  Millner's  Estate, 
L.  R.  14  Eq.  245,  s.  c.,  3  Moak's 
Eng.  719;  and  see  25  Weekly  R. 
901,  4  L.  J.  N.  S.  380. 

40  Paragraph  41  (below). 

The  record  of  a  board  of  health 
showing  the  date  of  a  person's 
birth,  is  competent  evidence  on  the 
issue  of  the  age  of  such  person 
where  the  law  of  the  State  in  which 
the  person  was  born  made  it  the 
duty  of  such  board  to  keep  a 
record  of  births.  Bucher  v.  Show- 
alter,  44  Okla.  690,  145  Pac.  Rep. 
1143. 

"Clark  v.  Trinity  Church,  5 
Watts  &  S.  (Penn.)  266,  269;  Black- 
burn v.  Crawfords,  3  Wall.  189; 
Morrissey  v.  Wiggins  Ferry  Co., 
47  Mo.  521;  Matter  of  Greco, 
154  N.  Y.  Supp.  306,  90  Misc. 
241. 

"Kennedy  v.   Doyle,   10  Allen 


(Mass.),  161;  Whitcher  v.  Mc- 
Laughlin,  115  Mass.  167. 

43  A  statement  of  illegitimacy  in 
the  registry  has  been  deemed  com- 
petent, but  its  weight  is  question- 
able. Morris  v.  Davis,  3  Carr.  & 
P.  215,  427;  and  see  Caujolle  ». 
Ferric,  23  N.  Y.  90. 

Where  there  is  a  law  requiring 
a  public  officer  to  gather  and  record 
information,  as  the  federal  laws 
which  require  census  lists  to  be  pre- 
pared, or  State  laws  which  require 
school  teachers  to  make  lists  re- 
cording the  name,  age  and  sex  of 
the  pupils,  those  lists  will  be  com- 
petent evidence  as  to  the  age  of  a 
person  whose  name  is  recorded. 
Priddy  v.  Boice,  201  Mo.  309,  99 
S.  W.  Rep.  1055,  9  L.  R.  A.  N.  S. 
718,  119  Am.  St.  Rep.  762,  9  Ann. 
Cas.  874. 

Census  lists  are  competent  only 
to  prove  facts  of  a  public  nature, 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


271 


29.  Consorting  as  a  Family. 

The  fact  that  persons  dwelt  or  consorted  together  as  mem- 
bers of  one  family  hi  the  apparent  relation  of  parent  and 
child,  ^and  assisted  and  depended  on  each  other  as  such,  is 
competent,  in  connection  with  other  substantial  evidence  to 
show  the  existence  of  the  relation.44  The  value  of  such  ev- 
idence depends  on  much  the  same  principles  as  those  which 
admit  cohabitation  and  repute  to  prove  marriage. 

30.  Direct  Testimony  to  Age. 

Where  age  is  a  fact  of  pedigree  within  the  rules  below 
stated,  it  seems  that  the  person  whose  age  is  in  question,  if 
he  be  a  competent  witness,  may  as  properly  as  any  other 
person,  testify  to  it,  under  the  conditions  on  which  hearsay 
as  to  pedigree  is  admissible;  but  there  seems  to  be  no  good 
foundation  for  allowing  him  to  state  it  except  upon  such 
sources.45  Inspection,  however,  is  deemed  a  sufficient  legal 


and  not  the  details,  as  the  age  of  a 
particular  person,  which  are  re- 
corded only  as  a  basis  for  the  gen- 
eral summaries  affecting  the  public. 
Campbell  v.  Everhart,  139  N.  C. 
503,  52  S.  E.  Rep.  201. 

A  school  census  giving  the  ages 
of  pupils  cannot  be  offered  in  evi- 
dence except  for  school  purposes. 
Edwards  v.  Logan,  114  Ky.  312, 
70  S.  W.  Rep.  852,  75  S.  W.  Rep. 
257,  24  Ky.  Law  678,  1099. 

Statements  by  a  father  as  to  the 
age  of  his  child,  made  to  a  census 
enumerator,  are  admissible  in  evi- 
dence. Battles  v.  Tallman,  96 
Ala.  403,  11  So.  Rep.  247. 

44  See  Kansas,  etc.,  Rw.  Co.  v. 
Miller,  2  Col.  T.  459;  Baltimore, 
etc.,  R.  R.  Co.  v.  Gettle,  3  W.  Va. 
376,  385.  The  fact  that  one  was 
brought  up  in  the  family  of  per- 
sons living  together  as  husband 


and  wife,  as  their  offspring,  and 
was  recognized  as  their  child  by 
them  and  others,  imposes  the 
burden  of  disproving  his  right  to 
inheritance  upon  persons  attack- 
ing it  and  claiming  to  be  the  law- 
ful heirs.  Metheny  v.  Bohn,  160 
111.  263,  43  N.  E.  Rep.  380. 

45  Compare  Dewitt  v.  Barly,  17 
N.  Y.  344;  McCarty  v.  Deming,  4 
Lans.  440;  Hart  v.  Stickney,  4  L. 
&  Eq.  Rep.  120;  Banks  v.  Metcalfe, 
1  Wheel.  Cr.  Cas.  381. 

The  testimony  of  a  person  as  to 
his  own  age  is  competent  notwith- 
'  standing  that  he  does  not  know  the 
facts  of  his  own  personal  knowl- 
edge. Stevens  v.  Elliott,  30  Okla. 
41,  118  Pac.  Rep.  407. 

A  witness  may  testify  to  his  own 
age,  subject,  of  course,  to  be  tested 
on  cross-examination  as  to  his 
sources  of  information.  Klicke  v. 


272 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


criterion  to  decide  the  question  of  infancy,46  and  is  sufficient 
to  put  a  party  who  may  be  affected  by  it  upon  inquiry; 47 
but  the  mere  opinion  of  a  witness  respecting  the  age  of  a  per- 
son, from  his  appearance,  unaccompanied  by  the  facts  on 
which  that  opinion  is  founded,  is  incompetent.48  • 

31.  Physician's  Testimony  or  Account. 

The  testimony  of  the  attending  physician  to  the  fact  and 
the  date  49  of  birth  is  competent  for  the  purpose  of  proving 


Allegheny  Steel  Co.,  119  Cir.  Ct. 
App.  317, 200  Fed.  Rep.  933. 

A  person  is  always  a  competent 
witness  as  to  his  own  age  notwith- 
standing that  he  has  derived  his 
knowledge  as  to  it  from  his  parents 
or  relatives.  People  v.  Ratz,  115 
Cal.  132,  46  Pac.  Rep.  915. 

A  person  may  testify  as  to  his 
own  age,  which  is  a  matter  of  ped- 
igree which  he  is  presumed  to 
know.  His  testimony  is  primary 
and  not  secondary  evidence,  and 
it  is  not  vitiated  by  his  statement 
that  his  mother  told  him  how  old 
he  is.  Cherry  v.  State,  68  Ala.  29. 

Age  may  be  proven  by  the  testi- 
mony of  the  person  whose  age  is  in 
question,  and  the  fact  that  his 
knowledge  is  derived  from  state- 
ments of  his  parents  or  from  family 
reputation  does  not  render  the 
testimony  inadmissible.  Landers 
».  Hayes,  196  Ala.  533,  72  So.  Rep. 
106. 

The  testimony  of  a  witness  as  to 
his  age  is  not  incompetent  as  hear- 
say. City  of  Chicago  v.  Betti,  192 
111.  App.  87. 

A  witness  may  testify  as  to  his 
own  age  from  hearsay,  but  not  as 
to  the  age  of  another  person  upon 
the  basis  of  hearsay  and  reputation. 


Freeman  v.  Boynton  First  Nat. 
Bank,  44  Okla.  146,  143  Pac.  Rep. 
1165. 

The  date  of  a  person's  birth 
may  be  testified  to  by  himself  or 
by  members  of  his  family  although 
the  testimony  is  based  on  family 
tradition.  Lincoln  Reserve  Life 
Ins.  Co.  v.  Morgan,  126  Ark.  615, 
191  S.  W.  Rep.  236. 

49  State  v.  Arnold,  13  Ir.  L. 
(N.  C.)  184. 

It  is  competent  to  prove  by  wit- 
nesses that  a  person  has  the  ap- 
pearance of  being  of  a  certain  age. 
Bell  v.  Bearman,  37  Okla.  645,  133 
Pac.  Rep.  188;  State  v.  Grubb,  55 
Kan.  678,  41  Pac.  Rep.  951. 

47  Conroe  v.  Birdsall,  1  Johns. 
Cas.  127. 

43  Morse  v.  State,  6  Conn.  9,  13. 

"Opinions  of  age  deduced  from 
appearances  are  the  least  reliable 
of  all  opinion  evidence  and  are 
worthless  as  evidence  if  unac- 
companied by  the  descriptive  facts 
and  circumstances  from  which  the 
opinion  is  drawn."  Tuite  v.  Su- 
preme Forest  Woodmen  Circle, 
193  Mo.  App.  619,  187  S.  W.  Rep. 
137. 

"Beates  v.  Retallick,  11  Penn. 
288. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


273 


infancy;  and  equally  for  proving  existence  or  age  for  any 
other  purpose.50  If  he  does  not  remember  the  date,  the 
charge  made  by  him  in  his  accounts,  or  any  other  original 
contemporaneous  memorandum  he  made  of  the  fact,51  is 
competent,  if  introduced  by  his  testimony  that  it  was  cor- 
rectly made  at  the  time.52  If  the  physician  is  dead,  his  entry 
in  a  register  of  the  births  he  attended,  which  he  was  accus- 
tomed to  keep  in  the  course  of  his  vocation,  though  without 
requirement  of  statute,  is  evidence  of  the  time  of  a  birth 
entered  therein,  there  being  some  independent  evidence  of 
the  fact  of  birth.53 

32.  Legitimacy :  Burden  of  Proof  and  Presumptions. 

Legitimacy  is  a  presumption  of  law  in  the  absence  of  com- 
petent evidence  to  the  contrary  54  and  language  in  an  in- 


50  As  to  exclusion  for  professional 
privilege,  see  Edington  y.  Mut.  Life 
Ins.,  67  N.  Y.  185,  rev'g  5  Hun,  1; 
Blackburn  v.  Crawfords,  3  Wall. 
192,  and  cases  cited. 

"See  Guy  v.  Mead,  22  N.  Y. 
462;  Marcly  v.  Shults,  29  Id.  346. 

"Heath  v.  West,  26  N.  H.  (6 
Fost,),  191. 

The  account  books  or  other  books 
of  a  practicing  physician  or  surgeon, 
containing  entries  regularly  made 
hi  due  course  of  business  in  con- 
nection with  his  attendance  at  the 
birth  of  a  child,  together  with  his 
oral  evidence  verifying  such  rec- 
ord, are  legal  and  competent  evi- 
dence of  the  date  of  the  birth  of 
such  child.  Griffith  v.  American 
Coal  Co.,  75  W.  Va.  686,  84  S.  E. 
Rep.  621,  L.  R.  A.  1915,  F.  803. 

53  Arms  v.  Middleton,  23  Barb. 
571,  s.  P.,  Blackburn  t;.  Crawfords, 
3  Wall.  175.  In  Higham  v.  Ridge- 
way  10  East,  109,  such  evidence 


was  admitted,  not  as  an  entry  in 
the  ordinary  course  of  duty,  but 
as  an  entry  against  pecuniary  in- 
terest, because  the  charge  was 
marked  "paid."  In  Matter  of 
Paige  (62  Barb.  476),  an  entry  in  a 
book  not  kept  as  a  journal,  but 
with  each  account  by  itself,  was 
held  incompetent  without  proof  of 
its  truth.  Compare  generally  1 
Tayl.  Ev.  597-607,  1  Smith's  L. 
C.  500,  etc. 

54  Banbury  Peerage  Case,  1  Sim. 
&  St.  153;  Matter  of  Seabury,  1 
App.  Div.  N.  Y.  231.  The  law 
presumes  the  legitimacy  of  chil- 
dren; and  this  presumption  applies 
to  every  case  where  the  question 
is  at  issue,  and  is  controlling  when- 
ever not  inconsistent  with  the 
facts  proved.  In  re  Matthews,  153 
N.  Y.  443,  47  N.  E.  Rep.  901. 

The  children  of  a  marriage  duly 
solemnized  under  the  forms  of  law, 
but  void  because  of  the  father's 


274 


ACTIONS   BY   AND    AGAINST   HEIRS    AND 


strument  of  evidence  designating  a  person  by  the  word 
"son,"  "daughter,"  "child,"  or  the  like,  means  prima  fade, 
legitimate  offspring.55  The  burden  of  proof  is  on  the  party 
denying  the  legitimacy  of  one  shown  to  have  been  born  from 
a  wife,56  and  his  evidence  must  show  illegitimacy  beyond  a 


having  a  former  wife  living,  are 
protected  by  law,  deemed  legiti- 
mate, and  entitled  to  inherit  his 
estate.  Cooper  t>.  McCoy,  116 
Ark.  501,  173  S.  W.  Rep.  412. 

The  last  clause  of  §  1387  of  the 
Civil  Code  (Cal.)  providing  that 
"the  issues  of  all  marriages  null  in 
law  or  dissolved  by  divorce,  are 
legitimate"  should  be  liberally 
construed.  The  section  also  ap- 
plies to  an  attempted  marriage 
contracted  in  good  faith.  In  re 
Shipp,  168  Cal.  640,  144  Pac.  Rep. 
143. 

If  two  enter  into  meritricious  re- 
lations while  either  had  a  husband 
or  wife  living  and  after  the  removal 
of  the  impediment  become  by 
agreement  lawful  husband  and 
wife,  their  previously  born  chil- 
dren are  thereby  legitimatized. 
Summo  v.  Snare,  etc.,  Co.,  166 
App.  Div.  425,  152  N.  Y.  Supp.  29. 

A  child  born  of  parents  during  a 
period  when  their  attempted  com- 
mon-law marriage  was  prohibited 
by  statute,  is  legitimate,  if  after 
the  repeal  of  the  statute  his  parents 
contract  a  valid  non-ceremonial 
marriage,  recognizing  him  as  their 
offspring.  Matter  of  Biersack,  159 
N.  Y.  Supp.  519,  96  Misc.  161. 

If  a  child  is  begotten  in  lawful 
wedlock  while  the  husband  and 
wife  are  living  together,  its  pater- 
nity and  legitimacy  are  conclusively 


presumed.  In  re  Henry,  167  Iowa, 
557,  149  N.  W.  Rep.  605.  But  see 
Kennedy  v.  State,  117  Ark.  113, 
173  S.  W.  Rep.  842,  L.  R.  A.  1916, 
B.  1052,  Ann.  Cas.  1917,  A.  1029. 

"All  that  the  law  requires,  to 
convert  a  bastard  into  a  natural 
child,  is  that  the  child  be  acknowl- 
edged by  his  or  her  father  by  a 
declaration  executed  before  a  not- 
ary public  and  two  witnesses,  if  it 
was  not  made  in  registering  the 
birth  or  baptism  of  the  child. 
Serres'  Succ.,  136  La.  531,  67  So. 
Rep.  356. 

Under  the  statutes  of  Kansas 
illegitimates  are  entitled  to  in- 
herit from  the  father  whenever 
they  have  been  recognized  by  him 
as  his  children;  but  such  recogni- 
tion must  have  been  general  and 
notorious  or  else  in  writing; 
whether  an  illegitimate  has  been 
so  recognized  by  his  father  as  to 
constitute  a  general  and  notorious 
recognition  of  that  relation  is  a 
question  of  fact.  Arndt  t;.  Arndt 
(Kan.),  167  Pac.  Rep.  1055. 

"Caujolle  v.  Ferric,  23  N.  Y. 
105, 107. 

58  Phillips  v.  Allen,  2  Allen,  454; 
Caujolle  v.  Feme,  26  Barb.  (N. 
Y.)  177,  s.  c.,  23  N.  Y.  90.  The 
English  authorities  (which  hold 
to  stronger  rules  of  cogency  than 
some  American  authorities  on  a 
question  arising  in  a  civil  case 


NEXT   OF   KTN,    DEVISEES   AND    LEGATEES 


275 


reasonable  doubt.  This  presumption  is  additional  to  the 
presumptions  indulged  in  favor  of  marriage,  and  of  innocence 
of  the  parents,  and  may  prevail,  notwithstanding  the  co- 
habitation of  the  parents  is  shown  to  have  been  illicit  in  its 
origin,  and  there  is  no  definite  proof  as  to  when  or  how  the 
change  from  concubinage  to  matrimony  took  place.57  A 


involving  crime  or  turpitude)  re- 
quire evidence  "strong,  distinct, 
satisfactory  and  conclusive."  Har- 
grave v.  Hargrave,  9  Beav.  555; 
People  v.  Woodson,  29  Cal.  App. 
531,  156  Pac.  Rep.  378  (following 
rule  in  Hargrave  v.  Hargrave,  9 
Beav.  552,  50  Reprint,  457);  and 
see  23  N.  Y.  109. 

The  law  presumes  legitimacy,  and 
one  who  asserts  illegitimacy  has 
the  burden  of  proof.  Overlock  v. 
Hall,  81  Me.  348,  17  Atl.  Rep.  169. 

Proof  of  illegitimacy  must  be 
clear  and  convincing.  Patterson 
v.  Gaines,  6  Howard,  550,  12  L.  ed. 
553;  Mink  v.  State,  60  Wis.  583, 
19  N.  W.  Rep.  445,  50  Am.  Rep. 
386;  State  v.  Lavin,  80  Iowa,  555, 
46  N.  W.  Rep.  553;  Scanlon  v. 
Walshe,  81  Md.  118,  31  Atl.  Rep. 
498,  48  Am.  St.  Rep.  488;  Kenning- 
ton  f.  Catoe,  68  S.  C.  470,  47  S.  E. 
Rep.  719;  In  re  Pickens,  163  Pa. 
14,  29  Atl.  Rep.  875,  25  L.  R.  A. 
477. 

Where  the  evidence  shows  that 
the  parties  who  contracted  a  mar- 
riage were  under  the  age  of  consent, 
and  that  they  never  cohabited  or 
consorted  as  husband  and  wife, 
the  burden  of  disproving  the  legiti- 
macy of  a  child  born  of  a  subse- 
quent marriage  of  one  of  the  par- 
ties rests  upon  those  denying  it, 
for  the  presumption  of  a  continu- 


ance of  the  former  marriage  is  not 
as  strong  as  the  presumption  of 
legitimacy.  Barker  v.  Barker,  172 
App.  Div.  244,  158  N.  Y.  Supp. 
413. 

As  a  child  born  out  of  lawful 
wedlock  becomes  legitimatized  by 
the  marriage  of  the  parents,  its 
status  in  that  regard  will  not  be 
disturbed  because  of  the  subse- 
quent annulment  of  the  marriage 
on  the  ground  of  duress.  Houle  v. 
Houle,  100  Misc.  28,  166  N.  Y. 
Supp.  67. 

Illegitimacy  cannot  be  found  un- 
less the  parties  holding  the  burden 
of  establishing  it  complete  a  chain 
of  evidence  which  will  not  only 
demonstrate  the  fact  and  validity 
of  an  earlier  marriage  and  its 
subsistence  at  the  time  of  the  latter 
marriage,  but  will  aggressively 
exclude  every  suggestion  which 
might  conceivably  rescue  the 
second  marriage  from  invalidity. 
Matter  of  Biersack,  159  N.  Y. 
Supp.  519,  96  Misc.  161. 

57  Thus  the  marriage  of  the  par- 
ents may  be  presumed,  from  the 
fact  that  the  father  desired  to 
marry  the  mother;  and  that  while 
he  might  have  maintained  an 
illicit  relation  with  her  without 
opposition  from  his  relatives,  he 
abandoned  his  home  and  parents 
in  order  to  live  with  her.  Caujolle 


276 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


child  born  during  the  mother's  coverture,58  (even  so  soon 
after  marriage  that  conception  must  have  preceded  mar- 
riage),59 is  presumed  legitimate  in  the  absence  of  competent 


v.  Feme,  23  N.  Y.  90,  108,  affi'g  26 
Barb.  177,  4  Bradf.  28. 

It  is  not  necessary  to  prove  the 
fact  of  illegitimacy  beyond  a  reason- 
able doubt  in  a  civil  action.  Cave 
».  Cave,  101  S.  C.  40,  85  S.  E.  Rep. 
244. 

To  rebut  the  presumption  that  a 
child  born  in  lawful  wedlock  is 
the  child  of  the  husband,  proof 
beyond  a  reasonable  doubt  is  re- 
quired. State  v.  Shaw,  89  Vt. 
121,  94  Atl.  Rep.  434,  L.  R.  A. 
1915,  F.  1087. 

Where  the  relation  between  man 
and  woman  was  illicit  at  its  com- 
mencement, the  burden  is  upon  the 
children  born  to  them  to  show  the 
actual  marriage  of  their  mother  to 
the  decedent  whose  estate  they 
claim,  as  his  heirs,  or  that  he  had 
publicly  recognized  her  as  his 
wife,  or  had  cohabited  with  her  in  a 
common  dwelling.  In  re  Fuller, 
250  Pa.  78,  95  Atl.  Re-p.  382. 

Even  though  a  marriage  cannot 
be  supported  inter  partes,  there  is 
still  the  presumption  that  the 
children  thereof  are  legitimate. 
Matter  of  Biersack,  159  N.  Y. 
Supp.  519,  96  Misc.  161. 

If  a  child  whose  birth  is  in  ques- 
tion was  the  offspring  of  a  cere- 
monial union  that  is  enough  to 
raise  the  presumption  of  legiti- 
macy. With  equal  reason  and  with 
equal  force  the  presumption  must 
be  available  to  a  child  whose  par- 
ents came  together  in  a  purpose 
and  endeavor  to  contract  a  so- 


called  common-law  marriage.  Mar- 
ter  of  Biersack,  159  N.  Y.  Supp. 
519,  96  Misc.  161. 

"Cross  t;.  Cross,  3  Paige,  139, 
Banbury  Peerage  Case  (above). 
A.  T.  E.— 8 

A  child  born  in  wedlock  is 
presumed  to  be  legitimate,  and  this 
presumption  exists  even  though  it 
be  born  within  a  month  or  a  day 
after  marriage;  but  the  presump- 
tion may  be  rebutted  by  the  facts 
and  circumstances  which  show  that 
the  husband  could  not  have  been 
the  father  because  he  was  impo- 
tent, or  could  not  have  had  access. 
West  v.  Redmond,  171  N.  C.  742, 
88  S.  E.  Rep.  341. 

59  Page  v.  Dennison,  5  Am.  L. 
Reg.  0.  S.  469,  s.  c.,  1  Grant,  377; 
Co.  Litt.  244  a.  But  see  Phillips 
v.  Allen,  2  Allen,  455.  But  if  the 
birth  was  before  marriage,  though 
the  intercourse  was  under  promise 
of  marriage,  the  child  is  illegitimate. 
Cheney  v.  Arnold,  15  N.  Y.  346. 

A  child  born  in  lawful  wedlock 
is  presumed  to  be  legitimate. 
Orthwein  v.  Thomas,  127  111.  554, 
21  N.  E.  Rep.  430,  11  Am.  St.  Rep. 
159,  4  L.  R.  A.  434;  Romero's 
Estate,  75  Cal.  379,  17  Pac.  Rep. 
434. 

Where  an  antenuptial  conception 
is  shown,  the  presumption  of 
legitimate  birth  is  so  far  weakened 
that  it  may  be  overcome  by  a  small 
amount  of  evidence.  Jackson  v. 
Thornton,  133  Tenn.  36,  179  S.  E. 
Rep.  384. 


NEXT   OF   KIN.    DEVISEES   AND    LEGATEES 


277 


evidence  to  the  contrary,  and  this  is  a  strong  legal  presump- 
tion, and  can  only  be  rebutted  by  proof  that  no  sexual  inter- 
course occurred  60  at  any  time  (whether  before  or  after  mar- 
riage),61 when  the  child  could  have  been  begotten;  or  what 
is  equivalent,  that  the  husband  was  physically  incompetent, 
or,  that  under  sentence  of  a  court  of  competent  jurisdiction, 
they  were  living  separate.62  Sexual  intercourse  is  presumed 
from  access.63  Where  access  giving  opportunity  for  sexual 


ao  Proof  negativing  it  beyond  a 
reasonable  doubt,  for  instance 
showing  continued  actual  separa- 
tion, with  only  interviews  at  which 
such  intercourse  was  not  had, 
may  be  enough.  Cross  v.  Cross 
(above);  Van  Aernam  v.  Van  Aer- 
nam,  1  Barb.  Ch.  378. 

Where  a  child  is  born  so  soon 
after  marriage  that  it  becomes 
certain  that  it  was  begotten  be- 
fore marriage,  the  law  will  presume 
that  the  child  was  begotten  by 
him  who  became  the  husband. 
McCulloch  v.  McCulloch,  69  Tex. 
682,  7  S.  W.  Rep.  593,  5  Am.  St. 
Rep.  96;  Wallace  v.  Wallace,  137 
Iowa,  37,  114  N.  W.  Rep.  527,  126 
Am.  St.  Rep.  253,  14  L.  R.  A.  (N. 
S.)  544,  15  Ann.  Cas.  761. 

In  order  to  bastardize  a  child 
born  hi  wedlock  or  thereafter, 
within  the  period  of  gestation,  it 
must  be  shown  by  those  asserting 
illegitimacy,  that,  for  some  reason, 
such  as  non-access  or  impotency 
or  the  like,  the  husband  could  not 
possibly  have  been  the  father  of 
the  child.  Vanover  v.  Steele,  173 
Ky.  114, 190  S.W.  Rep.  667. 

61  Page  v.   Dennison   (above). 

The  presumption  that  a  child 
born  in  wedlock  is  legitimate  is 
not  an  absolute  one,  but  is  rebut- 


table.  It  is  overcome  by  proof  of 
impotency  on  the  part  of  the 
husband.  Drake  v.  Milton  Hos- 
pital Ass'n,  266  Mo.  1,  178  S.  W. 
Rep.  462. 

62 1  Best's  Ev.  464,  Banbury 
Peerage  Case  (above). 

A  child  born  in  lawful  wedlock 
is  presumed  to  be  the  child  of  the 
husband;  but  it  is  a  presumption 
of  fact  which  may  be  rebutted  by 
proof  of  non-access,  and  where 
the  husband  and  wife  live  apart, 
non-access  may  be  shown  by  the 
facts  and  circumstances.  State  v. 
Shaw,  89  Vt.  121,  94  Atl.  Rep. 
434,  L.  R.  A.,  1915,  F.  1087. 

«3  Head  v.  Head,  1  Sim.  &  St.  150. 

Absence  of  the  husband  for  a 
period  of  years  before  the  birth  of 
the  child  is  conclusive  proof  of 
illegitimacy.  Pittsford  v.  Chitten- 
den,  58  Vt.  49,  3  Atl.  Rep.  323. 

Proof  that  access  was  impos- 
sible during  the  tune  that  the 
child  must  have  been  begotten  is 
competent  evidence  of  illegiti- 
macy. Robinson  v.  Ruprecht,  191 
111.  424, 61  N.E.  Rep.  631. 

Non-access  must  be  established 
by  irrefragable  proof,  i.  e.,  so 
clearly  and  certainly  as  not  to 
admit  of  denial,  dispute  or  con- 
troversy. Mayer  v.  Davis,  122 


278 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


intercourse  is  shown,  such  that  the  husband  might  in  the 
usual  course  of  nature 64  be  the  father,  no  evidence  that  he  is 
not,  can  be  received,  except  such  as  tends  to  negative  his 
having  had  such  intercourse.65  Such  evidence  is  competent,66 
but  without  it  evidence  of  the  wife's  simultaneous  adulterous 
intercourse  with  another  man,  is  incompetent,  for  if  there  be 
a  possibility  of  legitimacy  the  law  will  not  weigh  against  it 
the  doubt.67  But  it  is  not  admissible  to  prove  by  statements 
of  the  neighbors  of  a  person  that  he  was  illegitimate.68  And 
evidence  of  doubts,  rumors  and  the  like  among  neighbors  as 
to  the  paternity  of  a  child  when  he  appeared  in  a  family,  is 
inadmissible  upon  the  question  of  his  parentage.69  Opin- 


N.  Y.  App.  Div.  393,  106  N.  Y. 
Supp.  1041. 

•  Where  a  child  was  begotten  be- 
fore marriage  and  without  knowl- 
edge by  the  husband,  he  must  in 
an  action  for  divorce  on  that 
ground,  prove  non-access  as  clearly 
and  convincingly  as  if  the  child  had 
been  begotten  during  wedlock. 
Wallace  v.  Wallace,  137  Iowa,  37, 
114  N.  W.  Rep.  527,  126  Am.  St. 
Rep.  253,  14  L.  R.  A.  N.  S.  544, 
15  Ann.  Gas.  761. 

64  For  presumption  as  to  period 
of  gestation,  see  1  Best  Ev.  455,  and 
standard  treatises  on  Med.  Jurisp. 

Where  access  is  not  admitted, 
and  the  evidence  that  there  was  no 
opportunity  for  it  greatly  prepon- 
derates, the  jury  are  not  required  to 
believe  that  it  was  impossible  for 
the  husband  to  have  been  the 
father  of  the  child  in  order  to  find 
it  to  be  illegitimate,  but  it  may 
make  such  finding  if  the  circum- 
stances and  evidence  show  clearly 
and  conclusively  to  a  reasonable 
mind  that  there  was  neither  access 
nor  opportunity  for  it  at  or  about 


the  time  the  child  must  have  been 
begotten  according  to  the  laws  of 
nature.  Wilson  v.  Wilson,  174  Ky. 
771,  193  S.  W.  Rep.  7. 

65  Banbury  Peerage  Case  (above) . 

Impotency  of  the  alleged  father 
is  competent  evidence.  State  v. 
Broadway,  69  N.  C.  411. 

6e  Head  v.  Head  (above). 

67  Bury  v.  Phillpot,  2  Mylne  &  K. 
349;  Cross  r.  Cross,  3  Paige,  139. 
Compare  in  favor  of  admission  of 
strong  circumstantial  evidence  that 
a  child  begotten  during  wedlock 
was  the  offspring  of  adultery,    1 
Bish.  Mar.  &  D.,  §§  448,  449. 

68  Matter  of  Seabury,  1  App.  Div. 
(N.  Y.)  231. 

The  general  reputation  and  com- 
mon report  of  the  neighborhood, 
as  well  as  in  the  family,  is  ad- 
missible to  show  legitimacy.  Lay 
».  Fuller,  178  Ala.  375,  59  So.  Rep. 
609. 

69  Metheny  v.  Bohn,  160  111.  263, 
43  N.  E.  Rep.  380. 

The  legal  presumption  of  legiti- 
macy is  always  and  everywhere 
indulged  where  the  possibility  of 


NEXT  OF   KIN.    DEVISEES   AND    LEGATEES 


279 


ions  of  witnesses  as  to  the  family  resemblance  between  a 
child  and  the  putative  father  are  not  admissble  in  proof 
of  paternity.70 

33.  Parents'  Testimony  and  Declarations  as  to  Legitimacy. 
Neither  husband  nor  wife  is  competent,  either  viva  voce 
or  on  deposition,  to  prove  or  disprove  non-access  or  non- 
intercourse,  directly  or  indirectly,71  even  where  pregnancy 


legitimacy  exists;  neighborhood 
rumor  to  the  contrary  at  most 
does  no  more  than  create  a  sus- 
picion. Vanover  v.  Steele,  173 
Ky.  114,  190  S.  W.  Rep.  667. 

To  override  the  presumption  of 
legitimacy  of  a  child  born  in  wed- 
lock, even  though  antenuptial  con- 
ception is  shown,  clear,  strong  and 
convincing  testimony  must  be 
adduced.  A  mere  preponderance  is 
not  enough.  Testimony  as  to 
rumors  and  suspicion  among  neigh- 
bors touching  the  true  paternity 
of  the  child  will  not  avail  to  over- 
come the  presumption.  Jackson 
v.  Thornton,  133  Tenn.  36,  179  S. 
W.  Rep.  384. 

70  Shorten  v.  Judd,  56  Kans.  43, 
42  Pac.  Rep.  337.  In  this  case  it 
was  said  by  the  court:  "While  in 
most  cases  evidence  of  family  re- 
semblance by  view  and  comparison 
of  the  jury  is  of  little  value  in  proof 
of  parentage,  yet  it  has  often  been 
held  admissible  where  the  child 
has  attained  an  age  when  its  fea- 
tures have  assumed  some  degree  of 
maturity  and  permanency.  Where 
the  child  is  a  young  infant,  it  has 
been  held  best  not  to  exhibit  it 
to  the  jury.  Much  must  be  left  to 
the  discretion  of  the  trial  court, 
however,  as  to  the  proper  age. 


The  State  ».  Danforth,  48  Iowa, 
43,  47;  The  State  v.  Smith,  54 
Iowa,  104;  Gillmanton  v.  Ham,  38 
N.  H.  108,  112-113.  And  where 
the  putative  father  is  dead,  and  a 
photograph  proven  to  be  a  good 
likeness  of  him  is  offered  in  evi- 
dence for  the  purpose  of  compari- 
son with  the  child  in  court,  we 
think  it  admissible.  (2  Rice  Ev., 
§§  435  et  seq.;  Udderzook  v.  Com- 
monwealth, 76  Penn.  St.  340,  352, 
353;  People  v.  Webster,  68  Hun, 
11,  17.)" 

In  a  bastardy  proceeding  ex- 
hibition of  the  child  to  the  jury 
as  evidence  of  paternity  is  a  mat- 
ter vesting  in  the  sound  discretion 
of  the  trial  court.  State  v.  Brown- 
ing, 96  Kan.  540,  152  Pac.  Rep. 
672. 

71 1  Tayl.  Ev.  837,  §868,  and 
cases  cited. 

Neither  husband  nor  wife  may 
testify  as  to  access  or  non-access, 
nor  are  their  declarations  admis- 
sible on  this  point.  Wallace  v. 
Wallace,  137  Iowa,  37,  114  N.  W. 
Rep.  527,  14  L.  R.  A.  (N.  S.)  544, 
126  Am.  St.  Rep.  253,  15  Ann.  Gas. 
761. 

In  the  absence  of  statutory  au- 
thority, a  married  woman  is  in- 
competent to  testify  to  the  non- 


280 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


preceded  marriage  72  and  the  fact  that  the  other  parent  is 
dead  does  not  alter  the  case.73  Modern  statutes  abrogating 
common-law  disqualifications  do  not  affect  this  incompetency 
unless  they  expressly  indicate  it.74  But  either  is  a  competent 
witness,75  and  the  declarations  of  either  are  competent  after 
his  or  her  death,  to  prove  legitimacy  76  or  illegitimacy ""  in 


access  of  her  husband.  West  v. 
Redmond,  171  N.  C.  742,  88  S.  E. 
Rep.  341. 

72  Page  v.  Dennison  (above),  472. 

The  declarations  of  a  father  or 
mother  cannot  be  admitted  to 
bastardize  the  issue  born  after 
marriage.  Godfrey  v.  Rowland,  17 
Hawaii,  577,  7  Ann.  Cas.  598; 
Rabeke  ».  Baer,  115  Mich.  328, 
69  Am.  St.  Rep.  567,  73  N.  W.  Rep. 
242. 

A  married  woman  cannot  testify 
to  the  non-access  of  her  husband. 
Craufurd  v.  Blackburn,  17  Md. 
49,  77  Am.  Div.  323;  Scanlon  v. 
Walshe,  81  Md.  118,  31  Atl.  Rep. 
498,  48  Am.  St.  Rep.  488. 

Public  morals  and  decency  would 
not  permit  a  wife  to  testify  to  any 
fact  tending  to  show  her  own  child 
to  be  illegitimate.  People  v,  On- 
tario County  Court  of  Sessions,  45 
Hun  (N.  Y.),  54. 

73 1  Tayl.  Ev.  §§  837,  868. 


74  Tioga  Co.  v.  South  Creek,  75 
Penn.  St.  436. 

«  1  Tayl.  838,  §  868. 

The  mother  is  not  a  competent 
witness  to  prove  that  her  child 
was  not  begotten  by  the  man  who 
became  her  husband  before  its 
birth.  Grates  v.  Garcia,  20  N. 
Mex.  158,  148  Pac.  Rep.  493. 

78  Bull,  N.  P.  294,  295,  Rose.  N. 
P.  46.  Suspicions,  doubts  and 
rumors  among  neighbors,  of  the 
paternity  of  a  child  in  a  family, 
do  not  rise  to  the  dignity  of  a 
"controversy"  as  to  his  parentage, 
which  will  exclude  subsequent  dec- 
larations of  the  father.  Metheny 
v.  Bohn,  160  111.  263,  43  N.  E. 
Rep.  380. 

Where  one  claiming  to  be  legiti- 
mate applied  for  partial  distribu- 
tion to  him  of  the  estate  of  a  de- 
cedent who  at  claimant's  birth 
stated  to  the  physician  in  attend- 
ance that  claimant  was  his  child, 


77  Blackburn  v.  Crawfords,  3 
Wall.  194.  Compare  Cope  v. 
Cope,  1  Moo.  &  Rob.  272;  Viall 
v.  Smith,  6  R.  I.  422;  Games  v. 
Relf,  12  How.  (U.  S.)  534. 

The  declarations  of  the  mother 
are  competent  to  prove  the  rela- 
tion of  parent  and  child,  without 
regard  to  whether  the  claim  is  that 
the  child  was  legitimate  or  illegiti- 


mate. Champion  v.  McCarthy, 
228  111.  87,  81  N.  E.  Rep.  808,  10 
Ann.  Cas.  517,  11  L.  R.  A.  N.  S. 
1052. 

Where  it  is  necessary  to  show 
general  recognition  of  legitimacy, 
an  occasional  denial  by  the  puta- 
tive father  would  not  obviate  a 
finding  that  recognition  was  gen- 
eral and  notorious.  To  be  general 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


281 


any  mode  not  involving  the  question  of  access,  such  as  tes- 
tifying to  the  date  of  birth,78  or  on  the  question  of  marriage; 79 
and  the  wife's  confession  of  her  own  adultery  is  competent 
evidence  of  the  illegitimacy  of  her  offspring,  when  the  fact 
of  non-access  has  been  shown  by  independent  evidence.80 
Evidence  of  the  treatment  of  the  child  by  the  husband  and 
wife,  its  recognition  or  non-recognition  by  them  and  by  the 
family,  the  mention  or  the  omission  of  the  husband  to  pro- 


the  testimony  of  the  physician 
is  competent  evidence  of  the  fact. 
No  confidential  relation  renders 
it  a  privileged  communication.  In 
re  Baird,  173  Cal.  617,  160  Pac. 
Rep.  1078. 

Statements  by  a  person,  since 
deceased,  recognizing  children  as 
his  own,  are  admissible  against 
persons  claiming  as  his  heirs  at 
law.  Bellinger  v.  Devine,  269  111. 
72,  109  N.  E.  Rep.  666. 

A  statute  to  the  effect  that  an 
illegitimate  child  shall  inherit  from 
the  person  who,  in  writing  and 
before  a  competent  attesting  wit- 
ness shall  have  declared  himself 
to  be  its  father,  contemplates  some- 
thing more  formal  than  the  mere 
writing  of  a  letter  in  the  presence 
of  a  third  party.  It  contemplates 
a  written  declaration  by  the  person 
making  it  that  he  is  the  father  of 
the  illegitimate  child.  The  declara- 


tion must  be  made  before  a  com- 
petent witness.  Williams  v.  Reid, 
130  Minn.  256,  153  N.  W.  Rep. 
324,  593. 

78  Goodright  v.  Moss,  Cowp.  591. 
But  not  sufficient  to  prove  illegi- 
timacy without  other  proof  of 
non-access.  Patterson  v.  Gaines, 
6  How.  (U.  S.)  550,  589. 

Where  it  is  conceded  that  a  man 
and  woman  were  married,  public 
policy  would  not  after  their  death 
permit  their  declarations  as  evi- 
dence against  the  legitimacy  of 
their  reputed  child;  but  where  the 
marriage  is  questioned,  their  dec- 
larations concerning  it  are  ad- 
missible even  though  legitimacy 
depends  upon  it.  Cave  v.  Cave, 
101  S.  C.  40,  85  S.  E.  Rep.  244. 

"Caujolle  v.  Feme,  23  N.  Y. 
104. 

80  Cross  v.  Cross,  3  Paige,  141, 
1  Tayl.  Ev.  838,  §  868. 


and  notorious  the  recognition  is 
not  required  to  be  universal  or 
made  known  to  all  or  a  majority 
of  the  community.  Luce  v.  Tomp- 
kins,  177  Iowa,  168, 158  N.  W.  535. 
Where  one  is  seeking  to  have 
himself  adjudged  to  be  the  legiti- 
mate child  of  a  decedent,  declara- 
tions made  by  decedent  after  ob- 


taining his  divorce  from  claimant's 
mother,  that  he  had  no  children, 
are  not  admissible;  but  if  there  is 
responsible  testimony  showing  non- 
access  or  no  opportunity  for  access, 
such  statements  may  be  admitted 
in  corroboration  of  such  testimony. 
Wilson  v.  Wilson,  174  Ky.  771, 
193  S.  W.  Rep.  7. 


282  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

vide  for  it  in  a  will  providing  for  other  children,  etc.,  is  com- 
petent, within  the  limits  of  the  rule  as  to  hearsay  on  facts  of 
pedigree.81  Evidence  that  one  since  deceased  admitted  his 
own  illegitimacy,  is  competent  against  those  claiming  under 
or  through  him.82 

IV.  HEARSAY  AS  TO  FACTS  OF  FAMILY  HISTORY 

(PEDIGREE) 

34.  Grounds  of  Receiving  it;  and  its  Weight. 

For  the  present  purpose  I  use  the  term  "Facts  of  Family 
History,"  instead  of  " Pedigree,"  as  conveniently  character- 
istic of  the  American  rule,  which  admits  certain  hearsay 
evidence  of  such  facts,  for  any  legitimate  purpose  within  the 
scope  of  this  chapter,  whether  directly  involved  in  the  issue 
or  not,83  and  does  not  restrict  its  use,  as  it  seems  the  English 
rule  does,  to  cases  where  it  is  offered  for  a  genealogical  pur- 
pose, that  is  to  make  out  one  link  hi  a  chain  of  pedigree.84  In 
other  respects  the  American  and  English  rules  stand  upon  the 
same  principle,  viz.,  that  upon  such  questions  the  law  will 
receive  the  natural  effusions  of  a  party  who  knew  the  truth, 
and  who  spoke  upon  an  occasion  where  his  mind  stood  in 
an  even  position  without  any  temptation  to  exceed  or  fall 
short  of  the  truth.85  The  value  of  such  evidence  is  enhanced 

81 1  Tayl.  Ev.  580,  §  584;  and  etc.,  where  marriage,  etc.,  is  the 

see   Stegall   v.    Stegall,    2   Brock,  substantive    fact.       Westfield     v. 

Marsh.    256.      Except,    perhaps,  Warren,  3  Halst.  249. 

where  the  child  is  proved  to  have  84 1  Tayl.  Ev.  575,  577,  without 

been  born  in  wedlock,  and  there  sufficient  reason.    1  Phil.  Ev.  C.  & 

is  no  evidence  of  non-access.    Page  H.  N.  252,  n.  91. 

v.  Dennison,  5  Am.  L.  Reg.  0.  S.  85Whitelocke  v.  Baker,  14  Ves. 

469,  s.  c.,  1  Grant,  377.  514. 

82  But  perhaps  not  against  others.  Some  confusion  has  arisen  from 
1  Tayl.  Ev.  571,  §  573.  the    idea    that   such    declarations 

83  North  Brookfield  v.  Warren,  16  were     competent    as     admissions 
Gray,  174,  and  other  cases  cited  against    interest.      They    do    not 
in    next    paragraphs;    Primm    v.  derive   their   evidential    value    or 
Stewart,   7  Tex.    178.     The  con-  competency  from  that  considera- 
trary  is  held  in  settlement  cases,  tion.      They    are    admitted    from 


NEXT    OF    KIN,    DEVISEES   AND    LEGATEES 


283 


in  proportion  as  it  relates  to  long  past  occurrences,86  other 
evidence  of  which  is  impaired  or  lost  by  lapse  of  time,87 — in 
proportion,  too,  as  it  consists  of  contemporaneous  declara- 
tions or  records  formally  88  or  solemnly 89  made  by  persons 
naturally  cognizant  of  the  facts,  and  who  would  have  no 
motive  to  misrepresent;  and  in  proportion  as  those  from 
whom  it  proceeded  bore  such  a  relation  as  created  an  interest 
to  ascertain  and  perpetuate  the  truth; 90  and,  if  consisting  of 
an  oral  declaration,  by  the  naturalness  of  the  circumstances 
which  led  to  its  being  made; 91  and,  if  consisting  of  records, 


reasons  of  necessity,  because  other- 
wise it  would  frequently  be  im- 
possible to  prove  kinship  of  mem- 
bers of  a  family  after  those  who 
knew  the  facts  are  dead.  In  re 
Hartman,  157  Cal.  206,  107  Pac. 
Rep.  105,  21  Ann.  Gas.  1302,  36 
L.  R.  A.  N.  S.  530. 

Pedigree  is  the  history  of  family 
descent,  which  is  transmitted  from 
one  generation  to  another  by  both 
oral  and  written  declarations,  and 
unless  proved  by  hearsay  evidence 
it  cannot,  hi  most  instances,  be 
proved  at  all.  Hence,  declarations 
of  deceased  members  of  a  family, 
made  ante  lilem  motam,  are  re- 
ceived to  prove  family  relation- 
ship, including  marriages,  births 
and  deaths,  and  the  facts  neces- 
sarily resulting  from  those  events. 
Young  v.  Shulenberg,  165  N.  Y. 
385,  59  N.  E.  Rep.  135,  80  Am. 
St.  Rep.  730;  Eisenlord  v.  Clum, 
126  N.  Y.  552,  27  N.  E.  Rep.  1024, 
12  L.  R.  A.  836;  Osborne  v.  Ram- 
say, 111  Cir.  Ct.  App.  594,  191 
Fed.  Rep.  114;  Cuddy  v.  Brown, 
78  111.  415. 

Only  slight  proof  of  the  relation- 
ship will  be  required,  since  the 


relationship  of  the  declarant  with 
the  family  might  be  as  difficult 
to  prove  as  the  very  fact  in  con- 
troversy. Lay  ton  ».  Kraft,  111 
N.  Y.  App.  Div.  842,  98  N.  Y. 
Supp.  72,  18  N.  Y.  Ann.  Gas.  228; 
Fulkerson  v.  Holmes,  117  U.  S. 
389,  29  L.  ed.  915. 

86  In  proving  recent  events  where 
the  fact  is  directly  in  issue,  stricter 
proof  may  be  reasonably  required. 
Rose.  N.  P.  49. 

Hearsay  testimony  as  to  pedigree 
is  not  confined  to  ancient  facts. 
Jarchow  v.  Grosse,  257  111.  36, 
100  N.  E.  Rep.  290,  Ann.  Gas. 
1914,  A.  820. 

87  Stouvenel  v,  Stephens,  26  How. 
Pr.  244,  and  cases  cited. 

88  Thus  a  formal  "family  record" 
hi  a  Bible  requires  less  authentica- 
tion than  a  similar  memorandum 
casually  made  elsewhere. 

89  Thus    dying    declarations    of 
legitimacy  are  entitled  to  special 
weight.      Caujolle    v.    Ferrie,    23 
N.  Y.  90,  94. 

90  Per    Ld.    ELDON,    Walker    v. 
Wingfield,  18  Ves.  511. 

"Id. 


284 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


in  proportion  as  they  have  been  public,  open,  and  well  known 
in  the  family,  thus  acquiring  such  confirmation  as  the  tacit 
consent  of  those  interested  can  give.92  Without  some  de- 
gree of  these  characteristics  it  is  not  admissible.  At  best  it  is 
weak  evidence,93  its  value  often  depending  upon  the  absence 
of  other  sources,  and  although  the  weight  of  such  evidence  is 
for  the  jury,  it  is  proper  for  the  court  to  instruct  them 
whether,  upon  a  view  of  the  whole,  it  is  sufficient  to  sustain 
a  finding.94 


35.  What  Facts  are  Within  the  Rule. 

The  facts  of  family  history  which  may  be  proved  by  hear- 
say from  proper  sources,  are  the  following — birth;95  living 


92  North  Brookfield  v.  Warren, 
16  Gray,  174,  per  BIGELOW, 
C.  J. 

85  Morewood  v.  Wood,  14  East, 
330.  Hearsay  is  competent  on 
questions  of  pedigree  and  heirship. 
Chilvers  v.  Race,  196  111.  71,  63 
N.  E.  Rep.  701;  Metheny  v.  Bonn, 
160  111.  263,  43  N.  E.  Rep.  380; 
Savage  v.  Luther,  J65  111.  App.  1. 

94  Sprigg  v.  Moale,  28  Md.  497, 
509. 

The  question  of  the  competency 
of  the  declarations  is  a  question 
of  law  for  the  court,  and  should 
not  be  submitted  to  the  jury. 
In  re  Lyle,  93  Neb.  768,  141  N.  W. 
Rep.  1127. 

Family  history  is  nothing  but 
the  declaration  of  different  mem- 
bers of  a  family  repeated  by  so 
many  persons  and  for  such  a  time 
as  to  become  common  repute  in 
the  family.  Upon  the  same  sub- 
jects the  family  history  and  the 
declarations  of  a  deceased  member 
of  a  family  are  equally  admissible; 


the  weight  to  be  given  to  each  de- 
pends upon  the  circumstances, 
and  is  a  question  for  the  jury,  not 
a  question  of  admissibility.  Cox 
v.  Brice,  86  Cir.  Ct.  App.  378, 
159  Fed.  Rep.  378;  Byers  v.  Wal- 
lace, 87  Tex.  503,  28  S.  W.  Rep. 
1056,  29  S.  W.  Rep.  760. 

95  North  Brookfield  v.  Warren, 
16  Gray,  174;  Am.  Life  Ins.  Co. 
v.  Rosemagle,  77  Perm.  St.  507, 
516. 

Pedigree,  including  birth,  may 
be  proved  by  general  repute  in 
the  family,  under  Civil  Code, 
1910,  §5764.  Luke  v.  Hill,  137 
Ga.  159,  73  S.  E.  Rep.  345,  38 
L.  R.  A.  N.  S.  559. 

On  the  question  of  whether 
the  deceased  was  a  negro,  evidence 
that  a  certain  negro  and  negress 
always  looked  after  the  decedent 
and  regarded  him  as  their  son  is 
admissible.  Ixjcklayer  v.  Lock- 
layer,  139  Ala.  354,  35  So.  Rep. 
1008. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


285 


or  survival; 96  marriage; 97  issue  or  want  of  issue; 98  death;  " 
the  times,  either  definite  l  or  relative,2  of  these  facts;  relative 
age  or  seniority; 3  name; 4  relationship  generally; 5  its  de- 
gree; 6  in  some  sense  legitimacy  and  the  contrary; 7  and  the 


96  Johnson  v.  Pembroke,  11  East, 
504. 

When  an  occurrence  has  taken 
place  in  a  family,  such  as  a  mar- 
riage, a  birth,  a  death,  or  any  other 
fact  in  reference  to  lineage  or 
pedigree,  and  when  members  of 
the  family  afterwards  speak  of  such 
facts  and  make  declarations  in  re- 
ference thereto,  such  declarations 
so  made  are  admissible  after  the 
death  of  the  person  making  them, 
to  prove  such  facts.  Denbo  v, 
Boyd,  194  Mo.  App.  121,  185 
S.  W.  Rep.  236,  citing  Met.  Life 
Ins.  Co.  v.  Lyons,  50  Ind.  App. 
534,  98  N.  E.  Rep.  824. 

97  Caujolle  v.  Ferrie,  23  N.  Y.  90, 
and  see  paragraph  18  (above). 

Where  the  question  for  determi- 
nation is  whether  a  marriage  ex- 
ists or  not,  the  declaration  of  one 
of  the  parties  to  the  alleged  mar- 
riage who  is  since  deceased,  cannot 
be  received  in  evidence  against 
the  other  party  if  not  made  in  his 
or  her  presence.  Hubatka  v. 
Maierhoffer,  81  N.  J.  L.  410, 
79  Atl.  Rep.  346;  Hill  v.  Hill,  32 
Pa.  511;  Hulett  v.  Carey,  66  Minn. 
327,  69  N.  W.  Rep.  31,  34  L.  R.  A. 
384,  61  Am.  St.  Rep.  419;  Thomp- 
son v.  Mims,  83  Wis.  261,  53  N.  W. 
Rep.  502,  17  L.  R.  A.  847. 

98  People  v.  Fulton  Fire  Ins.  Co., 
25  Wend.  208;  and  see  paragraph 
25  and  notes. 

Where  decedent  deposited  money 


in  savings  banks  as  trustee  for 
fictitious  sons  when  hi  fact  he  had 
no  sons,  hearsay  evidence  as  to 
declarations  by  the  decedent  that 
he  had  no  sons  will  be  admitted. 
Washington  v.  Bank  for  Savings, 
171  N.  Y.  166,  63  N.  E.  Rep.  831, 
89  Am.  St.  Rep.  800,  affirming  65 
N.  Y.  App.  Div.  338,  72  N.  Y. 
Supp.  752. 

"Masons  v.  Fuller,  45  Vt.  29, 
1  Tayl.  Ev.  570,  §  572. 

1Roe  v.  Rawlins,  7  East,  290; 
Webb  v.  Richardson,  42  Vt.  465. 

z  Bridger  v.  Huett,  2  Fost.  &  F. 
35. 

3  Johnson  v.  Pembroke,  11  East, 
504. 

4  Per  Ld.  BROUGHAM,  Monkton 
v.  Att.-Gen.,  2  Russ.  &  M.  158. 

5  Doe  v.  Randall,  2  Moore  &  P. 
20,  26;  Vowles  v.  Young,  13  Ves. 
147. 

Descent,  relationship,  age,  births, 
marriages  and  deaths  may  be 
proved  by  hearsay  evidence  of 
declarations  of  deceased  blood 
relatives,  or  of  husband  or  wife  of 
the  party  whose  pedigree  is  at  issue 
when  made  ante  litem  motam.  Har- 
vick  v.  Modern  Woodmen  of  Amer- 
ica, 158  111.  App.  570. 

6  Webb   v.   Richardson,   42   Vt. 
465;  and  see  Chapman  v.  Chap- 
man, 2  Conn.  350. 

7  See  paragraph  33. 

Hearsay  evidence  may  not  be 
introduced  to  prove  illegitimacy 


28(5 


ACTIONS    BY   AND    AGAINST   HEIRS   AND 


place  of  residence,  when  proved  for  purpose  of  identification.8 
At  this  limit  the  rule  stops.  It  does  not  admit  hearsay  as  to 
a  specific  fact,  however  closely  connected  with  these  facts 
of  family  history,  if  one  which  in  its  nature  is  susceptible  of 
being  proved  by  witnesses  speaking  from  their  own  knowl- 
edge, even  although  all  such  witnesses  are  dead.9  The  virtue 
of  the  evidence  depends  on  the  fact  being  a  salient  fact  in  a 
family  history  which  concerns  the  declarant.  A  declaration 
as  to  a  fact  of  this  character  is  not  excluded  because  the  fact 
is  only  incidentally  in  issue;  and  on  the  other  hand,  a  dec- 
laration as  to  an  ordinary  fact  is  not  made  competent  by  its 
enabling  to  fix  the  date  or  "existence  of  a  fact  of  family  his- 
tory.10 

36.  By  Whose  Declarations  such  Facts  May  be  Proved. 

To  render  the  evidence  competent  (unless  it  is  admissible 


unless  legitimacy  is  claimed.  Flora 
v.  Anderson,  75  Fed.  Rep.  217. 

» See  Cuddy  v.  Brown,  78  111. 
415;  Sheilds  v.  Boucher,  1  De  £ex 
&  Sm.  40,  s.  P.,  Doe  v.  Randall,  2 
Moore  &  P.  20;  see  1  Tayl.  Ev.  578, 
§582. 

9  Thus  hearsay  as  to  legal  status, 
as  slave  or  free,  is  not  competent. 
Mima  Queen  v.  Hepburn,  7  Cranch, 
290,  295.  Nor  is  hearsay  as  to 
place  of  birth  or  death.  Town 
of  Union  v.  Town  of  Plainfield, 
39  Conn.  563;  Monkton  v.  Att.- 
Gen.,  2  Russ.  &  M.  156,  Ld. 
BROUGHAM;  McCarty  v.  Deming,  4 
Lans.  440.  But  see  1  Whart.  Ev., 
§  208.  As  to  whether  statements 
of  a  legal  conclusion,  such  as  that 
one  was  "heir,"  or  "could  get 
nothing  by  law,"  and  the  like,  is 
competent,  the  authorities  are  in 
conflict.  In  the  affirmative,  see 
Doe  v.  Randall,  2  Moore  &  P. 


20;  Doe  v.  Davis,  10  Q.  B.  314. 
In  the  negative,  Chapman  v.  Chap- 
man, 2  Conn.  350.  Compare  Viall 
v.  Smith,  6  R.  I.  417. 

A  son  can  testify  to  the  "family 
tradition"  as  to  the  age  of  his 
mother  when  she  died.  Rosenthal 
v.  Supreme  Ruling,  F.  M.  C.,  129 
Minn.  214,  152  N.  W.  Rep. 
404. 

10 1  Tayl.  Ev.  576.  The  rule  does 
not  extend  to  declarations  by  serv- 
ants, friends  or  neighbors.  Flora 
v.  Anderson,  75  Fed.  Rep.  217. 

A  question  of  age  is  not  neces- 
sarily one  of  pedigree,  and  declara- 
tions as  to  such  are  deemed  to  be 
relevant  only  in  cases  in  which  the 
pedigree  to  which  they  relate  is  in 
issue,  and  not  in  cases  in  which  it 
is  only  relevant  to  the  issue.  Tuite 
v.  Supreme  Forest  Woodmen  Circle, 
193  Mo.  App.  619,  187  S.  W.  Rep. 
137. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


287 


as  matter  of  general  repute  under  the  rule  stated  below), 
it  must  appear  that  the  declarant,  or  source  of  the  wit- 
ness's information,  was  a  deceased n  member  of  the 
family,  that  is  to  say  legally  12  related  by  blood  or  mar- 


"  Emerson  v.  White,  29  N.  H.  (9 
Fost.)  491,  and  cases  cited. 

It  is  essential  that  the  declarant 
be  dead.  Nehring  v.  McMurrain, 
46  S.  W.  Rep.  (Tex.  Civ.  App.)  369; 
Nolan  v.  Nolan,  35  N.  Y.  App.  Div. 
339,  54  N.  Y.  Supp.  975. 

Pedigree  declarations  constitute 
an  exception  to  the  hearsay  rule, 
and  only  those  connected  with  the 
family  by  blood  or  marriage  are 
competent  declarants.  And  evi- 
dence of  such  declaration  during 
the  lifetime  of  the  declarant  is  in- 
admissible. If  living  the  declarant 
would  be  subject  to  examination 
as  any  other  witness.  Lemons  v. 
Harris,  115  Va.  809,  80  S.  E.  Rep. 
740. 

In  order  to  make  such  declara- 
tions admissible,  declarant  must  be 
dead  at  the  tune.  Wolf  v.  Wilhelm, 
146  S.  W.  Rep.  (Tex.  Civ.  App.) 
216. 

To  admit  in  evidence  declarations 
as  to  pedigree  the  prerequisites 
are,  first,  it  must  be  proven  by  evi- 
dence aliunde  the  statement  itself 
that  the  declarant  was  related  to 
the  family  about  which  he  spoke; 
second,  that  the  statements  were 
made  ante  litem  motam;  and,  third, 
that  the  declarant  is  dead.  Overby 
v.  Johnston,  42  Tex.  Civ.  App.  348, 
94  S.  W.  Rep.  131. 

In  cases  of  pedigree  hearsay 
evidence  of  declarations  of  persons 
who,  from  their  situation  were 


likely  to  know,  is  admissible  when 
the  person  making  the  declara- 
tions is  dead.  Eisenlord  v.  Clum, 
126  N.  Y.  552,  27  N.  E.  Rep.  1024, 
12  L.  R.  A.  836. 

When  pedigree  is  directly  in- 
volved hearsay  is  permissible  to 
establish  relationship,  if  it  is  the 
declaration  of  a  deceased  member 
of  the  family  or  the  husband  or 
wife  of  a  member  of  the  family. 
Matter  of  Kennedy,  82  N.  Y.  Misc. 
214, 143  N.  Y.  Supp.  404. 

Family  repute  cannot  be  estab- 
lished by  the  testimony  of  a  wit- 
ness who  did  not  know  any  member 
of  the  family  and  whose  informa- 
tion is  derived  solely  from  the 
declarations  of  a  person  since  de- 
ceased whose  connection  with  the 
family  is  not  made  to  appear  other- 
wise than  by  his  own  declaration. 
Mobly  p.  Pierce,  144  Ga.  327,  87 
S.  E.  Rep.  24. 

To  render  admissible  the  declara- 
tion of  a  member  of  a  family  as 
to  pedigree,  family  history  or 
repute,  it  must  appear  that  the 
declarant  is  at  the  tune  dead,  in- 
sane, or  permanently  or  indefinitely 
beyond  the  jurisdiction  of  the 
court.  Perolio  v.  Doe  ex  dem. 
Woodward  Iron  Co.  (Ala.),  73 
So.  Rep.  197. 

12 1  Tayl.  Ev.  569. 

The  declarations  of  persons  who 
are  shown  by  other  evidence  to  be 
members  of  the  family  may  be 


288 


ACTIONS   BY   AND   AGAINST   HEIRS  AND 


riage,13  to  the  family  whose  history  the  fact  concerns. 
Therefore  the  witness  must  name  the  source  of  informa- 
tion,14 and  show  affirmatively  that  it  was  a  relative  or 


proven.  Scheidegger  v.  Terrell,  149 
Ala.  338,  43  So.  Rep.  26. 

From  necessity,  in  cases  of  pedi- 
gree, hearsay  evidence  is  admissible, 
but  this  rule  is  limited  to  the  mem- 
bers of  the  family,  who  may  be  sup- 
posed to  have  known  the  relation- 
ship which  existed  in  its  different 
branches.  Northern  Pac.  Ry.  Co. 
v.  King,  181  Fed.  Rep.  913,  104 
C.  C.  A.  351. 

Where  a  member  of  the  family 
derives  his  knowledge  from  one 
who  is  not  a  member  of  the  family 
his  testimony  is  not  admissible. 
Grand  Lodge  A.  O.  U.  W.  v.  Bartes, 
69  Neb.  631,  96  N.  W.  Rep.  186, 
98  N.  W.  Rep.  715,  111  Am.  St. 
Rep.  577. 

The  declarations  of  a  deceased 
parent  are  competent  evidence  on  a 
question  of  parentage.  Chilvers 
v.  Race,  196  111.  71,  63  N.  E.  Rep. 
701. 

»  Doe  v.  Randall,  2  Moore  &  P. 
20.  Where  the  declarant's  tie 
to  the  family  was  by  marriage,  the 
fact  that  it  had  been  dissolved  by 
death  before  the  declaration,  does 
not  render  the  declaration  incom- 
petent. 1  Tayl.  Ev.  571. 

It  is  not  necessary  to  show  that 
the  witness  testifying  is  related  to 
any  of  the  parties,  whose  relation- 
ship is  hi  question.  Any  person 
acquainted  with  a  family  and  rep- 
utation in  the  family  can  testify 
as  to  the  pedigree  and  relationship 
of  members  of  the  family,  and  as 
to  common  rumor  in  the  commu- 


nity as  to  this  pedigree  and  relation- 
ship and  as  to  the  declarations  of 
the  family  as  to  pedigree,  kinship, 
relationship,  marriages,  births,  etc., 
McLain  v.  Woodside,  95  S.  C.  152, 
79  S.  E.  Rep.  1. 

The  declarations  of  the  foster 
parents  of  an  adopted  illegitimate 
child  are  admissible  on  the  ques- 
tion of  the  child's  paternity.  Als- 
ton v.  Alston,  114  Iowa,  29,  86 
N.  W.  Rep.  55. 

Declarations  in  regard  to  pedi- 
gree, although  hearsay,  are  ad- 
mitted on  the  principle  that  they 
are  the  natural  effusions  of  persons 
whomust  know  the  truth  and  who 
speak  on  occasions  when  their  minds 
stand  in  an  even  position  without 
any  temptation  to  exceed  or  fall 
short  of  the  truth.  The  admissi- 
bility  of  such  declarations  is  sub- 
ject to  three  conditions:  (1)  The 
declarant  must  be  deceased.  (2) 
They  must  have  been  made  ante 
lilem  motam,  i.e.,  at  the  time  when 
there  was  no  motive  to  distort  the 
truth.  (3)  The  declarant  must  be 
related  either  by  blood  or  affinity 
to  the  family  concerning  which  he 
speaks.  Aalhohn  v.  People,  211 
N.  Y.  406,  105  N.  E.  Rep.  647,  L. 
R.  A.  1915,  D.  215,  Ann.  Cas.  1915, 
C.  1039.  See  also  Matter  of  Perk- 
ins, 174  App.  Div.  191,  160  N.  Y. 
Supp.  54. 

14  Entire  certainty  not  neces- 
sary. Scott  v.  Ratcliff,  5  Pet.  81. 

An  affidavit  to  the  effect  that 
affiant's  mother  who  was  a  step- 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


289 


connection,15  (though  the  degree  need  not  be  stated),16 
who  is  since  deceased.17  It  is  not  enough  that  the  ad- 
versary might  bring  out  the  contrary  by  cross-examination.18 
It  is  enough  to  show  that  the  declarant  was  thus  connected 
with  the  family,  without  showing  him  to  be  a  connection  of 
the  person  whose  connection  with  the  family  is  to  be  estab- 


daughter  of  decedent's  father,  had 
told  affiant  that  decedent  was  il- 
legitimate, has  no  probative  value, 
as  neither  affiant  or  affiant's  mother 
was  related  to  decedent  by  con- 
sanguinity or  affinity.  Even  under 
the  liberal  rules  applicable  to  pedi- 
gree cases  such  a  declaration  proves 
nothing.  Matter  of  Leslie,  175 
App.  Div.  108,  161  N.  Y.  Supp. 
790. 

"  Waldron  v.  Tuttle,  4  N.  H.  371, 
738;  Emerson  v.  White,  29  Id.  491, 
s.  P.,  Chapman  v.  Chapman,  2 
Conn.  347. 

The  relationship  of  the  declarant 
with  the  family  must  be  estab- 
lished by  evidence  outside  of  the 
declaration  itself.  Aalholm  v. 
People,  211  N.  Y.  406,  105  N.  E. 
Rep.  647,  L.  R.  A.  1915,  D.  215, 
Ann.  Cas.  1915,  C.  1039,  modifying 
157  N.  Y.  App.  Div.  618, 142  N.  Y. 
Supp.  926;  Greene  v.  Almand,  111 
Ga.  735,  36  S.  E.  Rep.  957,  citing 
§  36  of  the  text. 

18  Vowles  v.  Young,  13  Ves.  146, 
Ld.  ERSKINE. 

17  Greenleaf  v.  Dubuque,  etc.,  R. 
R.  Co.,  30  Iowa,  301;  Butler  v. 
Mountgarret,  7  H.  of  L.  Cas.  633; 
Emerson  v.  White  (above);  Wal- 
dron i'.  Tuttle  (above).  In  the 
two  last  mentioned  cases  the  opin- 
ion is  also  expressed,  that  it  must 
affirmatively  appear  that  the  de- 


clarants had  no  interest  to  mis- 
represent; but  this  is  not  sound  if 
intended  to  require  affirmative 
evidence  of  want  of  interest.  It 
is  enough,  in  the  first  instance, 
to  show  a  relationship  that  is  en- 
tirely free  from  the  indication  of 
any  such  interest. 

Hearsay  evidence  is  always  ad- 
missible to  prove  pedigree  and  this 
term  embraces  not  only  questions 
of  descent  and  relationship,  but 
also  the  particular  facts  of  birth, 
marriage  and  death  and  the  times 
when  these  events  may  have  hap- 
pened. Such  evidence  is  held 
admissible  not  only  from  the  ex- 
treme difficulty  of  producing  any 
better,  but  is  resorted  to  upon  the 
ground  of  the  interest  of  the  dec- 
larants in  all  such  matters  of 
family  relationship  and  connec- 
tion. These  declarations,  however, 
whether  in  writing  or  by  word  of 
mouth,  should  be  confined  to  some 
members  of  the  family  as  distin- 
guished from  a  general  rumor  or 
neighborhood  reputation,  and  as  a 
predicate  therefor  it  must  appear 
that  the  declarant  has  since  died. 
Landers  v.  Hayes,  196  Ala.  533, 
72  So.  106. 

"Emerson  t>.  White  (above). 
Contra,  Webb  v.  Richardson,  42 
Vt.  465. 


290 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


lished;  19  and,  conversely,  relationship  of  the  declarant  with 
the  particular  person  is  sufficient  to  admit  his  declarations  of 
the  relationship  of  that  person  to  the  family.20  But  his  re- 
lationship to  one  or  the  other  must  be  established  by  other 
evidence  than  the  declarations  themselves; 21  and  this  is  a 
preliminary  question  for  the  judge,22  and  slight  evidence  that 
the  declarant  was  connected,  even  without  showing  precise 
degree  of  relationship,  seems  to  be  enough.23  But  if  the  re- 
lationship is  remote,  the  question  will  be  wrhether  the  connec- 
tion was  such  as  to  bring  the  declarant  within  the  natural 
probability  of  knowledge  and  correctness.24 
It  is  not,  however,  necessary  that  the  declarant  should 


19  Monkton  v.  Attorney-General, 
2  Russ.  &  M.  156,  Ld.  BROUGHAM. 

The  decedent's  own  declarations 
may  be  admitted  to  show  kinship 
between  him  and  the  claimant. 
Young  v.  State,  36  Ore.  417,  59 
Pac.  Rep.  812,  47  L.  R.  A.  548. 

20  Id. 

21  Thus  to  prove  a  marriage,  for 
the   purpose    of   legitimating   the 
issue  as  heirs  of  the  alleged  hus- 
band,   evidence   of   a   declaration 
of  a  relative  of  the  woman  is  not 
competent   in   the   first   instance, 
because  the  declarant  must  first 
be  shown  to  be  connected  with  the 
family  of  the  man.    Blackburn  v. 
Crawfords,  3  Wall.  187,  and  cases 
cited.      But    compare    Jewell    v. 
Jewell,  1  How.    (U.  S.)    219,  231, 
where  declarations  of  the  husband 
of    a    daughter,    that    his    wife's 
mother    was   not   married,     were 
held   competent.     See  also  Alex- 
ander  v.    Chamberlain,    1    Supm. 
Ct.  (T.  &  C.)  600,  and  cases  cited. 

Pedigree,  including  descent,  re- 
lationship, birth,  marriage,  and 
death,  may  be  proven  by  the  dec- 


larations of  deceased  persons  re- 
lated by  blood  or  marriage;  but 
before  the  declarations  of  such 
deceased  persons  may  be  received 
in  evidence,  the  fact  of  relation- 
ship must  be  shown  by  other  evi- 
dence. Mobley  v.  Pierce,  144  Ga. 
327,  87  S.  E.  Rep.  24. 

22  Even  where  the  question  is 
the  same  with  that  on  which  the 
jury  are  to  pass.  Doe  v.  Da  vies, 
10  Q.  B.  323.  Contra,  Dyke  i>. 
Williams,  2  Sw.  &  Tr.  491. 

"  1  Tayl.  Ev.  573,  §  576. 

24  Chapman  v.  Chapman,  2  Conn. 
349.  The  tradition  must  be  from 
persons  having  such  a  connection 
with  the  party  to  whom  it  relates, 
that  it  is  natural  and  likely  from 
their  domestic  habits  and  connec- 
tions that  they  are  speaking  the 
truth,  and  that  they  could  not  be 
mistaken.  Whitelocke  v.  Baker, 
13  Ves.  511,  514,  Ld.  ELDON.  To 
render  objection  to  the  preliminary 
proof  available  as  error,  the  proof 
must  appear  in  the  exceptions. 
Whitcher  v.  McLaughlin,  115  Mass. 
167. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


291 


have  had  personal  knowledge,25  nor  need  the  declarations 
have  been  contemporaneous  with  the  event,26  nor  indicate 
the  source  of  the  declarant's  information.27 

37.  Family  Records. 

Records  of  such  facts  of  family  history,  made  or  preserved 
as  such  by  a  member  of  the  family,  are  competent — for  in- 
stance, entries  of  births,  deaths  and  marriages,  hi  the  family 
Bible,28  or  other  book  29  or  memorandum-book; 30  a  chart  or 


25  Jewell  v.  Jewell,  1  How.  (U.  S.) 
219,  231.  But  declarations  of  his 
own.  age  have  been  held  incompe- 
tent. Clark  v.  Trinity  Ch),  5  Watts 
&  S.  (Penn.)  266. 

26 1  Tayl.  Ev.  572,  §  575. 

27  Jewell  v.  Jewell  (above).   Com- 
pare 7  Scott  N.  R.  193,  213. 

28  Lewis  v.  Marshall,  5  Pet.  470, 
476;    Berkeley    Peerage    Case,    4 
Camp.  401. 

The  family  Bible  will  be  ad- 
mitted in  evidence  on  a  question 
of  age.  Swift  &  Co.  v.  Rennard, 
119  111.  App.  173;  People  v.  Slater, 
119  Cal.  620,  51  Pac.  Rep.  957; 
Hall  ».  Cardell,  111  Iowa,  206,  82 
N.  W.  Rep.  503;  Union  Central 
Life  Ins.  Co.  v.  Pollard,  94  Va.  146, 
26  S.  E.  Rep.  421,  64  Am.  St.  Rep. 
715,  36  L.  R.  A.  271. 

The  entries  made  in  a  family 
Bible  are  in  the  nature  of  declara- 
tions of  the  deceased  members  of 
the  family  as  to  matters  of  their 
family  history.  In  re  Peterson, 
22  N.  D.  480,  134  N.  W.  Rep. 
751. 

Entry  in  a  family  Bible  is  only 


secondary  evidence  of  age  of  a 
person  whose  birth  is  recorded  and 
it  is  only  admitted  when  better  evi- 
dence cannot  be  obtained.  Dob- 
son  v.  Cothran,  34  S.  C.  518,  13 
S.  E.  679. 

In  order  that  a  family  Bible  be 
admitted  in  evidence  as  a  family 
record  of  dates  of  birth  it  should 
be  shown  when  the  dates  were 
placed  in  the  book,  by  whose  au- 
thority, and  what  information 
the  person  making  the  entries  had. 
It  should  also  be  shown  that  the 
entries  were  made  contemporane- 
ously with  the  births  of  the  chil- 
dren named.  Supreme  Council, 
Golden  Star  Fraternity  v.  Conklin, 
60  N.  J.  Law,  565,  38  Atl.  Rep. 
659,  41  L.  R.  A.  449. 

Entries  as  to  births  or  pedigree 
made  in  a  family  Bible  by  mem- 
bers of  the  family,  since  deceased, 
are  competent  evidence  as  declara- 
tions made  by  them.  People  v. 
Mayne,  118  Cal.  516,  50  Pac. 
Rep.  654,  62  Am.  St.  Rep.  256;  Du- 
poyster  v.  Gagani,  84  Ky.  403,  1 
S.  W.  Rep.  652;  McCausland  v. 


29  A    hymn    book.      Collins    v. 
Grantham,  12  Md.  440. 

30  A    memorandum    book    con- 


taining a  record  of  inoculation. 
Clara  v.  Ewell,  2  Cranch  C.  Ct. 
208. 


292 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


genealogical  table  preserved  as  such  in  the  family; 31  almost 
any  document  which,  even  though  not  evidence  in  its  own 
character,  has  been  preserved  as  a  memorial  by  the  family, 
such  as  a  marriage  certificate,32  transcript  of  a  parish  reg- 
ister,33 an  ancient  canceled  will,34  a  ring  worn  publicly  by  a 
member  of  the  family,  stating  the  date  of  death  of  the  person 
whose  name  is  engraved  upon  it.35  Except  in  case  of  a  tomb- 
stone inscription,  or  a  formal  family  record  such  as  is  usually 
kept  in  a  Bible,  there  must  ordinarily  be  evidence  that  the 
entry  or  document  is  in  the  handwriting  of  a  deceased  36  mem- 


Fleming,  63  Pa.  St.  36;  Leggett  v. 
Boyd,  3  Wendell,  376. 

In  order  to  admit  a  family 
Bible  in  evidence  as  to  a  question 
of  pedigree  it  is  only  necessary  to 
show  that  it  is  the  family  Bible 
and  it  is  not  necessary  to  prove  the 
handwriting  of  the  entries  or  who 
mad«  them.  People  v.  Ratz,  115 
Cal.  132,  46  Pac.  Rep.  915;  Con- 
trary rule:  Golden  Star  Fraternity 
v.  Conklin,  60  N.  J.  Law,  565,  38 
Atl.  Rep.  659,  41  L.  R.  A.  449. 

11  North  Brookfield  v.  Warren, 
16  Gray,  171;  Goodright  v.  Moss, 
Cowp.  594. 

The  family  tree  of  an  ancestor 
made  by  one  of  his  descendants  is 
admissible  in  evidence.  Common- 
wealth Water  Co.  v.  Brunner,  175 
App.  Div.  153,  161  N.  Y.  Supp. 
794. 

32  Doe  v.  Davies,  10  Q.  B.  314. 

33  Kansas,  etc.,  Rw.  Co.  v.  Miller, 
'2  Col.  T.  460,  462. 

34  Johnson  v.  Pembroke,  11  East, 
504. 

36  Rose.  N.  P.  47,  citing  dictum  in 
2  Russ.  &  M.  158.  So  of  the  fact 
of  the  family's  wearing  mourning. 
Succession  of  Jones,  1 2  La.  Ann.  397. 


In  addition  to  the  declarations 
of  deceased  persons  who  were 
likely  to  know,  unauthenticated 
facts  and  entries,  made  presum- 
ably with  no  motive  to  deceive, 
such  as  an  entry  in  a  family  Bible, 
an  inscription  on  a  tombstone,  a 
pedigree  hung  up  in  a  family  man- 
sion, and  recitals  in  deeds,  are 
competent  evidence  upon  that 
issue.  Layton  v.  Kraft,  111  N.  Y. 
App.  Div.  842,  98  N.  Y.  Supp.  72, 
18  N.  Y.  Ann.  Cas.  228;  Young  ». 
Shulenberg,  165  N.  Y.  388,  59 
N.  E.  Rep.  135,  80  Am.  St.  Rep. 
730. 

34  Or,  perhaps,  of  one  beyond 
seas.  Collins  v.  Grantham,  12  Ind. 
440.  Where  the  member  of  the 
family  who  made  the  entry  is  In- 
competent as  a  witness,  he  may 
be  admitted  to  prove  the  entry. 
Carkshadden  v.  Poorman,  10  Watts, 
82.  It  must  be  shown  that  the 
person  who  made  the  entry  is  dead 
before  the  evidence  will  be  ad- 
missible. People  v.  Mayne,  118 
Cal.  516,  50  Pac.  Rep.  654. 
Whether  there  has  been  a  material 
alteration  hi  an  entry  made  in  a 
family  Bible  is  a  question  to  be  de- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


293 


her  of  the  family,  or  such  evidence  of  its  having  been  pre- 
served and  treated  in  the  family  as  containing  a  family  me- 
morial, as  to  give  it  the  character  of  a  declaration  by  the 
family  or  some  of  its  members.37  In  the  case  of  a  tomb- 
stone,38 or  a  Bible  shown  to  have  been  the  family  Bible,39 
this  is  presumed,  and  proof  of  handwriting  or  direction  to 
make  inscription  is  not  required.  The  existence  of  errors 
in  a  family  record,  and  the  fact  that  it  purports  to  be  founded 
partly  on  hearsay,  affect  its  credibility  rather  than  its 
competency,40  but  may  render  it  incompetent  as  to  matters 
obviously  stated  without  means  of  knowledge.41  The  hand- 
ing down  of  the  record  in  the  family,  may  be  proved  by  oral 
declarations  of  members  of  the  family.42 

38.  Other  Written  Declarations. 

Recitals  or  other  statements  in  an  instrument  executed 


termined  by  the  court  when  it  is 
offered,  and  before  it  is  presented 
to  the  jury;  and,  where  such  entry 
is  admitted,  it  must  be  assumed 
upon  appeal  that  the  court  was 
satisfied  that  no  material  change 
had  been  made  in  the  entry,  in  the 
absence  of  any  showing  to  the 
contrary,  and,  its  action  being 
matter  of  discretion,  its  ruling 
upon  the  question  of  alteration  is 
not  open  to  review,  unless  it  is 
made  to  appear  that  its  discretion 
was  absurd.  (Id.) 

37  Hood  v.  Beauchamp,  8  Sim.  26. 
Preservation    among     the    muni- 
ments of  the  family  renders  com- 
petent, especially  if  the  document 
was  against  interest.    Roe  v.  Raw- 
lings,  7  East,  291. 

38  Rose.  N.  P.  47.     Inscription 
may  be  proved  by  a  witness.     16 
Gray,  171. 

39  Rose.  N.  P.  47. 

The   admissibility   of   a   family 


Bible  containing  a  family  tree  or 
record  does  not  depend  upon  au- 
thorship or  authenticity  of  the 
entries,  but  upon  the  fact  that  it  is 
the  family  Bible  and  record  recog- 
nized as  such  by  those  with  whose 
genealogy  or  pedigree  it  is  con- 
cerned. In  re  Colbert,  51  Mont. 
455,  153,  Pac.  Rep.  1022. 

Mutilated  portions  containing 
family  records  are  admissible. 
Id. 

40Monkton  v.  Atty.  Gen.,  2 
Russ.  &  Myl.  147.  Even  the  testi- 
mony of  a  witness,  that  the  memo- 
rial was  not  considered  in  the 
family  as  a  correct  one,  without 
specifying  in  what  respect,  is  held 
to  affect  not  the  competency  but 
credibility  only.  Southern  Life 
Ins.  Co.  v.  Wilkinson,  53  Ga.  535. 

41  Davies  v.  Lowndes,  5  New  Cas. 
161,  6  M.  &  G.  471,  512,  525. 

«  Doe  v.  Davies,  10  Q.  B.  324, 
Ld.  DENMAN. 


294 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


by  a  member  of  the  family,  since  deceased,  such  as  a  will 
recognizing  children; 43  or  a  deed  in  which  parties  are  des- 
ignated, and  which  they  execute,  as  husband  and  wife; 44 
or  in  which  the  woman  joins  for  the  purpose  of  barring  her 
dower;  45  or  which  a  party  signs  with  the  addition  "child," 
or  "heir,"  or  the  like,46  although  not  competent  on  the  ques- 
tion of  title,47  are  competent  as  declarations  within  the  rule. 
And  although  the  original  itself  must  ordinarily  be  pro- 
duced,48 yet  in  case  of  an  ancient  instrument  the  record  or 
probate,  with  appropriate  evidence  to  identify  it  as  a  family 
or  public  memorial,  is  competent.49  Letters  purporting  to 


43  Russell  v.  Jackson,  22  Wend. 
276,   affi'g  4   Id.   543;   Cowan   v. 
Kite,  2  A.  K.  Marsh.  (Ky.)  238; 
Skeene  v.  Fishback,  1  A.  K.  Marsh. 
(Ky.)  356;  Shuman  v.  Shuman,  27 
Perm.  St.  90. 

A  will  is  competent  evidence  as 
to  questions  of  pedigree.  Russell 
0.  Langford,  135  Cal.  356,  67  Pac. 
Rep.  331. 

44  Hicks  v.  Cochran,  4  Edw.  107. 
The  pleadings  in  an  action  for 

divorce  are  competent  on  a  ques- 
tion of  pedigree.  Wren  v.  Rowland, 
33  Tex.  Civ.  App.  87,  75  S.  W.  Rep. 
894. 

45  Rose  ».  Clark,  8  Paige,  574, 
581,  and  cases  cited. 

44  Jackson  v.  Cooley,  8  Johns. 
128;  Doe  v.  Davies,  10  Q.  B. 
325. 

47  Skeene  v.  Fishback  (above). 

By  executing  a  note  and  mort- 
gage one  asserts  that  he  has  ca- 
pacity to  do  so,  and  the  papers  will 
be  admitted  in  evidence  as  com- 
petent proof  that  he  who  executed 
them  was  of  age.  Bell  v.  Bear- 
man,  37  Okla.  645,  133  Pac. 
Rep.  188. 


48  Doe  v.  Emerod,  1  Mov.  & 
Rob.  466. 

49  Russell  v.  Jackson,  22  Wend. 
276,  affi'g  4  Id.  543.  As  to  value 
and  effect  of  ancient  certificates, 
see  Hunt  v.  Johnson,  19  N.  Y.  279. 
Document  consisting  of  leaf  taken, 
after  his  death,  from  soldier's 
private  record-book,  required  to 
be  kept  by  soldiers  in  the  British 
service,  and  containing  the  names 
of  the  soldier  and  his  wife,  and  the 
names,  ages,  and  places  of  birth  of 
all  his  children,  is  competent  to 
prove  relationships  and  the  ages 
of  the  children;  and  its  removal 
from  the  book  in  no  way  derogates 
from  its  authenticity,  so  long  as 
it  is  traced  and  explained.  Hunt 
v.  Order  of  Chosen  Friends,  64 
Mich.  671,  8  Am.  St.  Rep.  855, 
31  N.  W.  Rep.  576. 

Recitals  of  heirship  or  pedigree 
in  an  ancient  deed,  where  no 
suspicious  circumstances  are  found, 
are  admissible  in  evidence  against 
all  persons,  including  strangers  to 
that  title.  Fielder  v.  Pemberton, 
136  Tenn.  440,  189  S.  W.  Rep. 
873. 


•     NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  295 

have  come  from  the  deceased,  and  containing  declarations 
as  to  the  facts  of  his  family  history,  are  competent  if  proved 
to  be  in  his  handwriting  by  the  knowledge  of  a  witness  who 
is  acquainted  with  it,  or  by  the  belief  of  a  witness  who  re- 
ceived them  in  due  course  of  correspondence,  and  acted  on 
them  as  such.  The  envelopes,  if  existing,  should  be  pro- 
duced, and  the  post-mark,  or  the  witness's  testimony  to  it 
if  the  envelope  has  been  destroyed,  is  prima  facie  evidence 
that  it  was  deposited  at  the  place  and  time  indicated  by  the 
mark.50  Statements  made  in  a  deposition  which  was  not 
taken  between  the  parties  to  the  action,  or  those  under 
whom  they  "claim,  are  not  regarded  as  admissible  as  declara- 
tions, because  artificially  drawn  forth  without  cross-examina- 
tion, especially  when  made  after  dispute  arose.51 

39.  General  Family  Repute. 

Some  facts  at  least  of  family  history, — such  as  death,  issue 
or  failure  of  issue,  kinship,  name,  and  marriage, — may  be 
proved  by  general  reputation  in  the  family,  upon  the  tes- 
timony of  a  witness  whose  knowledge  of  that  repute  and  of 

50  Kansas,     etc.,     Rw.     Co.     v.         An  affidavit  made  by  the  father 
Miller,  2  Col.  T.  460.  of  a  decedent  as  to  the  age  of  de- 

A  letter  written  by  a  deceased  cedent,  years  prior  to  the  death  of 

member  of  the  family  is  compe-  the   decedent,    is   incompetent    to 

tent  on  a  question  of  family  re-  prove  the  age,  although  it  may  be 

lationship.     In  re   McClellan,   20  competent  on  a  question  of  pedi- 

S.  D.  498, 107  N.  W.  Rep.  681.  gree.    Bowen  v.  Preferred  Accident 

51  Berkeley     Peerage     Case,     4  Ins.  Co.,  82  N.  Y.  App.  Div.  458, 
Campb.    401.      Otherwise    of    an  81  N.  Y.  Supp.  840;  Eisenlord  v. 
ex  parte  affidavit.    Hurst  v.  Jones,  Clum,  126  N.  Y.  552,  27  N.  E. 
Wall.  Jr.  373.  Rep.  1024,  12  L.  R.  A.  836. 

The  defendant  father  who  claims          A  letter  written  by  a  deceased 

that  his  daughter  was  over  eight-  brother  stating  the  age  of  the  in- 

een  years  of  age,  will  be  allowed  sured,  is  incompetent  for  the  pur- 

to  show  on  that  issue  that  she  had  pose  of  proving  age  notwithstand- 

a   birthday   party,   on   which   oc-  ing  that  it  might  be  admissible  in 

casion  there  was  a  birthday  cake,  case  of  disputed  pedigree.    Bowen 

with    figures    thereon    indicating  v.  Preferred  Accident  Ins.  Co.,  68 

her  age.    Parkhurst  v.  Krellinger,  N.  Y.  App.  Div.  342,  74  N.  Y. 

69  Vt.  375,  38  Atl.  Rep.  67.  Supp.  101. 


296 


ACTIONS    BY   AND   AGAINST   HEIRS   AND 


the  conduct  of  members  toward  each  other,  is  that  which 
usually  exists  among  intimate  acquaintances.52  But  the 
testimony  of  witnesses  who  are  not  connected  with  the  fam- 
ily, know  nothing  personally  of  the  facts  to  which  they 
speak,  and  have  not  derived  then*  information  from  such 
persons  as  had  any  connection  or  particular  acquaintance 
with  the  family,  but  can  only  state  loose  hearsay  from  un- 
known sources,  is  not  sufficient  to  go  to  the  jury.53  The  rule 


"  Eaton  v.  Tallmadge,  24  Wise. 
217,  222;  Bridger  v.  Huett,  2  Fost. 
&  F.  35;  Viall  v.  Smith,  6  R.  I.  419; 
Spears  v.  Burton,  31  Miss.  547, 
554;  Jackson  v.  Boneham,  15  Johns. 
226;  Russell  v.  Jackson,  22  Wend. 
276,  affi'g  4  Id.  543;  and  see  para- 
graphs 1,  8,  and  18.  To  the  con- 
trary, see  language  of  some  au- 
thorities cited  under  paragraph 
36. 

A  witness  who  derived  his  knowl- 
edge from  an  intimate  acquaint- 
ance of  the  family  will  be  allowed 
to  testify.  Hoyt  v.  Lightbody,  98 
Minn.  189,  108  N.  W.  Rep.  843, 
116  Am.  St.  Rep.  358,  8  Ann.  Cas. 
984. 

While  general  reputation  in  the 
family  will  be  admitted  on  a  ques- 
tion of  pedigree,  general  reputation 
in  the  community  will  not  be  ad- 
mitted. Lamar  v.  Allen,  108  Ga. 
158,  33  S.  E.  Rep.  958. 

Only  the  reputation  in  the  family 
of  the  party  whose  pedigree  is  in 
issue  will  be  admitted.  In  re 
Heaton,  135  Cal.  385,  67  Pac.  Rep. 
321. 

Evidence  that  a  man  voted  at  a 
poll  at  which  negroes  could  not 
vote  is  competent  evidence  on  the 
question  of  whether  his  son  is  a 
negro.  Gilliland  v.  Buncombe 


County  Board  of  Education,  141 
N.  C.  482,  54  S.  E.  Rep.  413. 

Notwithstanding  that  the  only 
evidence  of  the  wilness'  relation- 
ship to  the  decedent's  family  is 
his  own  testimony,  he  is  competent 
to  testify  as  to  the  repute  in  the 
family.  Smith  v.  Kenney,  54  S.  W. 
Rep.  (Tex.  Civ.  App.)  801. 

A  husband  is  presumptively 
competent  to  speak  on  the  sub- 
ject of  his  wife's  age,  and  may  do 
so,  though  his  knowledge  is  founded 
on  hearsay  derived  from  family 
tradition.  Adler  v.  Royal  Neigh- 
bors of  America,  90  Neb.  56, 
132  N.  W.  Rep.  716,  Ann.  Cas. 
1912,  D.  974;  Grand  Lodge  A. 
0.  U.  W.  v.  Bartes,  69  Neb.  636, 
96  N.  W.  Rep.  186,  98  N.  W.  Rep. 
715,  111  Am.  St.  Rep.  577. 

53  Jackson  v.  Browner,  18  Johns. 
37. 

On  questions  of  pedigree  and 
race  ancestry  the  declarations  of 
deceased  relatives  made  ante  litem 
motam  may  be  received  in  evidence. 
Such  testimony  is  not  always  re- 
stricted to  the  expressed  declara- 
tions of  the  parties  either  oral  or 
written,  but  under  certain  circum- 
stances may  be  extended  to  include 
treatment  and  conduct  of  parties 
towards  each  other,  where  such 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  297 

is  also  limited  to  cases  of  legitimate  relationship,  and  such 
evidence  cannot  be  introduced  to  establish  an  unlawful 
relationship,  per  se,  where  a  lawful  relationship  is  not 
claimed.54 


40.  Declarations  made  in  View  of  Controversy. 

It  is  not  every  kind  or  degree  or  interested  feeling  on  the 
part  of  the  declarant  that  will  exclude  a  declaration.  The 
law,  while  it  assumes,  as  the  foundation  of  the  rule,  the 
existence  of  an  interest,  created  by  domestic  ties,  to  know 
and  hand  down  the  truth,  recognizes  that  such  declarations 
are  often  accompanied  with  a  feeling  of  interest  which  will 
cast  suspicion  on  them,  without  rendering  them  incom- 
petent; 55  and  even  the  legal  interest  of  a  grantor,  hi  the 
support  of  the  recitals  in  his  deed,  does  not  exclude  them.56 
But  if  it  appears  by  either  the  declaration  itself,57  or  other 
evidence,  that  at  the  time  the  declaration  was  made,  a  dis- 
cussion and  controversy  had  arisen  (though  merely  hi  the 
family  and  before  litigation)  58  as  to  the  fact  of  family  history 

facts  are  relevant  and  tend  natu-  107    Pac.     Rep.     105,    21    Ann. 

rally  to  establish  the  relationship  Cas.    1302,   36  L.   R.  A.    N.    S. 

as  claimed.     Hall  v.  Fleming,  93  530. 

S.  E.  Rep.  (N.  C.)  728.  » Id. 

"Flora  v.   Anderson,   75    Fed.  "Butler  v.  Mountgarret,  7  H. 

Rep.  217.  of  L.  Cas.  645. 

65  Ld.  DENMAN,  Doe  v.  Davies,  10  M  It  is  the  beginning  of  dispute, 

Q.  B.  325.  involving  the  very  point  in  ques- 

Declarations  are  not  admissible  tion,  not  that  of  the  state  of  facts 

to  prove  pedigree  or  relationship,  from    which   the   dispute  sprang, 

except   when   they   are   made  by  nor    that    of    resulting    litigation, 

members  of  the  family  as  natural  which  terminates  the  competency, 

or  spontaneous  declarations  on  the  Shedden  v.  Patrick,  2  Sw.  &  Tr. 

subject  and  before  any  dispute  has  170,  188,  s.  c.,  L.  J.  30  P.  M.  &  A. 

arisen  over  the  question  or  any  (1860-1861)  217,  232. 

claim  has  been  made  to  the  estab-  The  declarations  must  have  been 

lishment  of  which  the  declarations  made  ante  litem  molam.     Wolf  v. 

would  be  material.    In  re  Walden,  Wilhelm,  146  S.  W.  Rep.  (Tex.  Civ. 

166  Cal.  446,  137  Pac.   Rep.  35;  App.)  216. 
In    re    Hartman,    157    Cal.    206, 


298 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


sought  to  be  proved,59  the  declaration  is  incompetent.60  It 
has  been  said  that  it  makes  no  difference  that  the  dispute 
was  raised  for  the  purpose  of  excluding  declarations,  or  that 
the  existence  of  the  dispute  was  unknown  to  the  declarant.61 
Declarations  made  for  purpose  of  evidence  would  not  be 
competent; 62  but  this  must  be  taken  in  connection  with  the 
existence  either  of  controversy  or  adverse  interest,  for  one 
proper  object  of  formal  family  records  is  to  preserve  evidence 


59  Elliott  v.  Piersol,  1  Pet.  337; 
Butler  v.  Mountgarret,  7  H.  of  L. 
Cas.  637. 

M  In  re  Hurlburt's  Estate,  68  Vt. 
366,  379,  35  Atl.  Rep.  77.  Lord 
BROUGHAM'S  view  was  that  it  is 
not  sufficient  that  the  declarant 
was  in  the  same  situation  touching 
the  matter  in  contest  with  the 
party  relying  upon  the  declara- 
tion, but  it  is  for  the  objector  to 
show  either  that  the  declaration 
was  made  after  controversy  com- 
menced, or  under  bias.  Monkton 
v.  Att.  Gen.,  2  Russ.  &  M.  160. 

Unless  declarations  are  made 
ante  litem  motam  they  will  not  be 
admitted.  Schott  v.  Pellerini,  43 
S.  W.  Rep.  (Tex.  Civ.  App.) 
944. 

Declarations  made  after  a  contro- 
versy has  arisen  are  inadmissible. 
Kirby  r.  Boaz,  41  Tex.  Civ.  App. 
282, 91  S.  W.  Rep.  642. 

The  statement  concerning  which 
a  witness  may  testify  must  have 
antedated  the  litigation  and  the 
controversy,  so  that  it  could  not 
have  been  induced  thereby.  Tn 
re  Carroll,  149  Iowa,  617, 128  N.  W. 
Rep.  929. 

The  declarations  must  be  made 
ante  litem  motam,  and  not  in  an- 
ticipation of  litigation  or  contest 


depending  upon  the  family  rela- 
tionship. Osborne  v.  Ramsay,  111 
Or.  Ct.  App.  594,  191  Fed.  Rep. 
114. 

61Shedden  v.  Patrick  (above). 

62  Chapman  v.  Chapman,  2  Conn. 
347,  SWIFT,  Ch.  J. 

The  declaration  of  a  parent  con- 
cerning the  age  of  his  child  is 
admissible  in  evidence  if  made 
before  the  cause  of  action  arose 
wherein  the  same  is  offered.  But 
before  such  declarations  are  ad- 
missible it  must  be  shown  that  the 
evidence  is  the  best  evidence  of 
which  the  case  is  susceptible,  that 
the  declarations  were  made  in 
good  faith,  unbiased  by  any  issue 
between  the  parties  likely  to  be 
affected  thereby,  and  made  before 
the  litigation  was  commenced  in 
which  such  evidence  is  used.  Per- 
kins «.  Baker,  41  Okla.  288,  137 
Pac.  Rep.  661. 

A  witness  cannot  testify  that 
he  heard  the  mother  of  a  grantor  in 
a  deed  say  that  he  was  an  infant 
at  the  time  of  its  execution,  unless 
it  is  first  sho\vn  that  the  declara- 
tion was  made  ante  litem  motam, 
and  that  the  declarant  is  dead. 
Hodges  v.  Hodges,  106  N.  C.  374, 
11  S.  E.  Rep.  364. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  299 

in  case  any  question  should  arise.63  Writings  dated  more 
than  thirty  years  past,  and  coming  from  the  proper  custody, 
are  presumed  to  have  been  made  at  the  time  of  their  date, 
as  against  the  suggestion  that  they  were  made  after  con- 
troversy had  arisen.64 

41.  Repute    Beyond    the    Family — Acquaintance — News- 
paper  Notice — Insurance. 

General  repute,  among  one's  acquaintances,  that  he  had 
died,  is  competent,  either  when  he  left  no  kindred,65  or,  hi 
connection  with  family  repute,  when  he  died  abroad.66  In 
the  absence  of  any  direct  evidence,  the  testimony  of  those 
who  naturally  would  be  likely  to  hear  of  the  absentee  if 
living — such  as  one  residing  near  the  estate  of  a  tenant  for 
life,  though  not  a  member  of  the  family — that  he  had  not 
been  heard  of  for  years,  is  competent.67  The  courts,  also, 
have  taken  notice  of  facts  affecting  pedigree  contained  in 
public  histories,  biographies  and  compilations  like  that  of 
"Debrett's  Peerage."  68  But  death  abroad  cannot  be  proved 

63  See  Berkeley  Peerage  Case,  4  lock  is  admissible,  though  hearsay. 
Campb.  401.  Hays  v.  Claypool,  164  Iowa,  297, 

64  Davies  v.  Lowndes,  7  Scott  N.  145  N.  W.  Rep.  874;  Van  Horn  v. 
R.  214,  and  cases  cited.     As  to  Van  Horn,  107  Iowa,  247,  77  N.  W. 
recent  writings,  compare  Potez  v.  Rep.  846,  45  L.  R.  A.  93;  Alston  v. 
Glossop,   2  Exch.    191;   Butler  v.  Alston,   114  Iowa,  29,  86  N.  W. 
Mountgarret,  7  H.  of  L.  Gas.  647.  Rep.  55. 

6SRinghouse  v.   Keever,  49  111.  «7Doet>.  Deakin,4B.  &  Aid.  433; 

470.  Flynn  v.  Coffee,  12  Allen,  133.    But 

66  Ewing  v.  Savary,  3  Bibb.  235,  common    repute    among    his    ac- 

238.  quaintances,  not  founded  primarily 

Repute  among  acquaintances  of  on  the  fact  of  death,  but  on  belief 

a  person  who  died  abroad  is  ad-  that  his  body  was  found  and  buried 

missible    to    prove    such    death,  at   a   particular   time   and   place, 

Cook  v.  Carroll,  etc.,  Co.,  39  S.  W.  is    not    competent,    unless    after 

Rep.  (Tex.  Civ.  App.)  1006.  great  lapse  of  time.     Jackson  v. 

A    general     reputation     among  Etz,  5  Cow.  316. 

friends  and  acquaintances  of  the  M  Russell  v.  Jackson,  22  Wend, 

family  that  the  decedent  was  the  276,  affi'g  4  Id.  543. 

father  of  a  son  born  out  of  wed-  Books  and  documents  of  a  pub- 


300  ACTIONS    BY   AND    AGAINST   HEIRS   AND 

by  a  newspaper  notice  published  here,69  and  the  better  opin- 
ion is  that  to  render  competent  newspaper  announcements 
of  facts  of  family  history,  there  must  be  something  to  con- 
nect them  either  with  the  family  or  a  member,  or  with  com- 
mon repute  properly  in  evidence.70  Upon  this  principle  of 
the  probable  truth  of  a  general  conviction  among  those 
likely  to  know  and  best  qualified  to  judge,  attested  by  their 
acting  upon  it,  the  courts  have  received  the  fact  that  in- 
surers have  paid  a  loss  upon  a  vessel  not  heard  from,  as  rel- 
evant to  the  presumption  of  death  of  one  on  board; 71  but, 
on  the  other  hand,  mere  memoranda,  though  found  in  official 
record  books,  are  not  competent,72  nor  is  an  assumption  of 
the  right  of  suffrage  or  a  submission  to  taxation  competent 
evidence  that  the  person  was  of  age,  except  against  himself  .73 

42.  Best  and  Secondary  Evidence. 

Oral  declarations  are  equally  primary  as  family  records  or 
other  documents  of  the  nature  of  hearsay; 74  but  the  com- 
petency of  each  depends  not,  indeed,  on  entire  absence  of 
more  satisfactory  evidence,75  but  on  the  death  of  the  de- 
clarant; and  if  he  is  alive,  and  present  or  within  reach  of 

lie  nature,  such  as  census  reports  Huntington,  1  Mill  (S.  C.)  Const, 

containing  facts  preserved  for  pub-  162;  Mann  v.  Russell,  11  111.  586; 

lie   reference  and  inspection,   are  Henkle    v.    Smith,    21    Id.    238; 

prima  facie  evidence  of  their  con-  Sweigar   v.   Lowmaster,    14    Serg. 

tents,     as    they    are    made    by  &  R.  200. 

disinterested   persons  in   the  dis-  71  See  paragraph  5  (above), 

charge  of  a  public  duty.    The  per-  72  Ridgeley  v.  Johnson,  11  Barb, 

son   making   the    entries   has    no  527;    See    Caujolle   v.    Ferrie,    23 

reason  to  falsify  them.    They  are  N.  Y.  90. 

prima   facie    evidence    of    family  ™  Clark    v.    Trinity    Church,    5 

relationship.      Matter     of     Ken-  Watts   &   S.    (Penn.)    266.     The 

riedy,  82  N.  Y.  Misc.  214, 143  N.  Y.  declarations  of  the  decedent  as  to 

Supp.  404.  his  age  are  not  competent. 

69  Fosgate  v.  Herkimer  Mfg.  Co.,  7<  Clements    v.    Hunt,    1    Jones 
9  Barb.  287,  295.  (N.  C.)  L.  400. 

70  Compare    Redgrave    v.    Red-  "1  Tayl.  Ev.  569,  574.     Corn- 
grave,  38  Md.  101 ;  Jewell  v.  Jewell,  pare  Fosgate  v.  Herkimer  Mfg.  Co., 
1  How.  (II.  S.)  219,  232;  Ring  v.  12  Barb.  352. 


NEXT   OF    KIN,    DEVISEES   AND    LEGATEES 


301 


process,  the  declaration,  whether  oral  or  written,  is  incom- 
petent,76 except  as  against  him  and  those  claiming  under  him, 
or  by  way  of  corroboration  of  testimony  given  by  the  de- 
clarant as  a  witness.77  Where  the  original  family  record  is 
proved  to  have  been  lost,78  or  in  any  other  way  properly 
accounted  for,  a  copy  is  admissible;  otherwise  not.79 

V.  REGISTRY  OF  FACTS  OF  FAMILY  HISTORY 
(PEDIGREE) 

43.  Registries  Authorized  by  Law. 

A  registry,  whether  of  birth,  marriage,  death  or  burial, 
kept  pursuant  to  law  (statutory  or  unwritten),  is  competent 
evidence  of  the  main  fact  and  its  date,80  and  of  any  other  fact 
which  the  law  or  statute  directed  the  officer  to  ascertain  and 
record; 81  and  it  is  not  incompetent  because  the  statute  does 
not  expressly  declare  it  to  be  evidence.82  To  prove  an  entry, 


76  Leggett  v.  Boyd,  3  Wend.  376; 
Campbell  v.  Wilson,  23  Tex.  252; 
Robinson  v.  Blakely,  4  Rich.  L. 
(S.  C.)  586. 

77  Wiseman  v.  Cornish,  8  Jones 
(N.  C.)  L.  218. 

78Whitcher  v.  McLaughlin,  115 
Mass.  167. 

79  Ryerson  v.  Graves,  1  N.  J.  L. 
(Coxe)  458.  A  recital  in  a  deposi- 
ion  not  enough.  Greenleaf  v. 
Dubuque,  etc.,  R.  R.  Co.,  30  Iowa, 
301.  It  has  been  held  that  the  age 
of  a  member  of  a  family,  copied 
by  a  son  into  the  family  Bible, 
from  another  book  where  the 
original  entries  were  made  by  his 
father,  is  not  competent  without 
accounting  for  the  entries  of  the 
father.  Curtis  v.  Patton,  6  Serg. 
&  R.  135.  But  they  might  be 
made  competent  by  evidence  es- 
tablishing the  family  Bible  as  the 
recognized  family  record. 


80  See  paragraphs  2,  16  and  28 
(above). 

81  Bucher  v.  Showalter,  44  Okla. 
690,  145  Pac.  Rep.  1143;  Derby  v. 
Salem,  30  Vt.  722    But  as  to  a  fact 
not  within  his  personal  knowledge, 
it  is,  of  course,  slight  evidence,  and 
without    the    statute   would    not 
be   competent.     But   a   defective 
record,  or  the  entry  of  facts  of 
which  the  entry  is  not  evidence, 
may  be  made  competent  by  trac- 
ing it  to  information  furnished  by  a 
competent  family  source,  making 
it  admissible  as  hearsay.    Viall  v. 
Smith,  6  R.  I.  421. 

82  State  v.  Wallace,  9  N.  H.  515; 
and    see    Wedgwood's    Case,    8 
Greenl.  75. 

Where  the  statute  made  it  the 
duty  of  an  officer  to  determine  be- 
fore the  issuance  of  a  marriage 
license  whether  a  person  was  over 
the  age  of  twenty-one  years,  a 


ACTIONS   BY   AND   AGAINST   HEIKS   AND 


in  such  a  register  kept  within  the  State,  the  book  may  be  pro- 
duced by  the  present  keeper  of  the  record,  or  other  witness 
who  can  testify  that  it  comes  from  the  proper  custody,  with 
evidence  either  that  it  is  the  official  register,  and  that  he  who 
was  the  keeper  at  the  time  of  the  entry,  made  the  entry,  or 
that  the  entries  relied  on,  or  at  least  some  of  them,  are  in  his 
handwriting,  and  that  the  book  was  handed  down  by  the 
present  keeper's  predecessors  in  office  as  the  official  register.83 
Instead  of  the  book,  a  copy  in  full  of  the  particular  entries 
relied  on  may  be  produced,84  authenticated  (if  the  statute 
authorizes  certified  copies)  by  the  certificate  of  the  keeper 
of  the  record,85  or  authenticated  by  the  oath  of  a  witness,  as 
in  the  case  of  a  voluntary  register  stated  below. 


marriage  license  issued  reciting 
the  age,  is  admissible  in  evidence 
upon  the  question  of  age.  It  is 
not  conclusive,  but  it  is  admissible 
for  what  it  may  be  worth.  Arm- 
strong v.  Modern  Woodmen  of 
America,  93  Wash.  352,  160  Pac. 
Rep.  946. 

83  Doe  &  Jaycoks  v.  Gilliam,  3 
Murph.    (N.   C.)    47;    Sumner    v. 
Seebec,  3   Greenl.   223.     Absence 
of  authentication  of  an  entry  in 
an  ancient  record  not  fatal.    Ex'rs 
of     Booge     v.     Parsons,     2     Vt. 
456. 

84  An  official  certified  copy  should 
be  a  literal  exemplification  of  each 
entry  relied  on,  but  a  sworn  copy 
produced  by  a  witness  may  be  the 
tabulation  of  several  entries  if  the 
witness  swears  that  he  extracted  the 
details  from  the  register.    Ameri- 
can Life  Ins.  &  Trust  Co.  v.  Rosen- 
agle,   77   Penn.   St.   507.     Where 
the  statute  requires  the  officiating 
clergyman  to  certify  his  act  to  the 
county  clerk  for  record,  the  proper 
evidence  is  a  copy  of  the  certificate, 


not  merely  of  the  memorandum 
of  the  clerk.  Niles  v.  Sprague,  13 
Iowa,  198.  Compare  Fox  v.  Lamb- 
son,  3  Halst.  275,  280.  As  to  de- 
lay in  the  clergyman's  return, 
see  People  v.  Lambert,  5  Mich.  349, 
1  Bish.  Mar.  &  D.,  §  468. 

Under  §§  11  and  12  of  Chapter 
89  of  the  Statute,  a  marriage  is 
proved  by  the  certificate  at  the 
ceremonial,  or  by  a  copy  of  the 
entry  in  the  registry,  certified  to 
by  the  county  clerk  under  the  seal 
of  the  county.  Ewing  v.  Cox, 
158  111.  App.  25. 

•»N.  Y.  Code  Civ.  Pro.,  §928 
(3  R.  S.,  6th  ed.  150,  §  17);  and  see 
Jackson  v.  People,  3  111.  (2  Scam.) 
231;  Matter  of  Hall,  154  N.  Y. 
Supp.  317,  90  Misc.  216;  Shamlian 
v.  Equitable  Ace.  Co.,  226  Mass. 
67,  115  N.  E.  Rep.  46. 

A  certified  copy  of  a  coroner's 
certificate  of  death  filed  with  the 
board  of  health,  is  prima  facie 
evidence  in  all  courts  of  the  facts 
recorded  therein.  Bromberg  v. 
North  American  Life  Ins.  Co.,  192 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


303 


A  register  kept  pursuant  to  the  law  of  a  sister  State  or 
foreign  nation,  may  be  proved  by  proving  the  law  which 
authorized  it,86  and  that  it  was  made  and  preserved  according 
to  that  law,  and  that  the  person  certifying  was  the  proper 
officer;87  and  by  producing  a  copy,  authenticated  as  such 
according  to  the  mode  prescribed  by  the  law  of  the  forum 
for  authenticating  foreign  official  acts,88  or  authenticated  by 


Mich.  143,  158  N.  W.  Rep. 
141. 

Certified  copies  of  birth  records 
from  the  state  or  local  register 
are  admissible  in  evidence.  A  sup- 
plemental birth  certificate  fur- 
nished at  the  instance  of  the  state 
board  of  health,  filed,  preserved 
and  found  in  the  office  of  the  clerk 
of  the  district  court  as  required  by 
the  then  existing  law,  will  not  be 
held  inadmissible  although  irregu- 
lar. Hyde  v.  Kloos,  134  Minn.  165, 
158  N.  W.  Rep.  920. 

88  See  paragraphs  9,  10;  and  see 
Morrisey  v.  Wiggins  Ferry  Co.,  47 
Mo.  521.  The  fact  that  the  record 
was  kept  and  preserved  pursuant  to 
foreign  law  may  be  proved  by  the 
custodian,  though  not  a  lawyer, 
for  he  is  in  a  position  to  make  it 
probable  that  he  knows  the  law. 
Am.  Life  Ins.  Co.  v.  Rosenagle,  77 
Penn.  St.  507. 

The  New  York  Code  Civ.  Pro., 
contains  no  provisions  as  to  prov- 
ing the  records  of  courts  of  other 
States  in  this  country.  Provisions 
for  these  are  contained  in  §  1, 
Art.  IV,  of  the  Constitution  of  the 
United  States  which  provides  that 
"full  faith  and  credit  shall  be 
given  in  each  state  to  the  pub- 
lic acts,  records  and  judicial 
proceedings  of  every  other  state." 


U.  S.  Comp.  Stat.,  §  1519,  pro- 
vides that  the  record  shall  be 
proved  by  the  attestation  of  the 
clerk  and  the  seal  of  the  court 
annexed,  if  there  be  a  seal,  to- 
gether with  a  certificate  of  the 
judge  that  the  attestation  is  in 
due  form.  See  Van  De venter  v. 
Mortimer,  56  N.  Y.  Misc.  650, 
107  N.  Y.  Supp.  564;  Trebilcox  t. 
McAlpine,  46  Hun  (N.  Y.),  469,  11 
N.  Y.  St.  847;  Milwaukee  Gold 
Extraction  Co.  v.  Gordon,  37  Mont. 
209,  95  Pac.  Rep.  995. 

«7  State  v.  Horn,  43  Vt.  20;  State 
v.  Dooris,  40  Conn.  145.  A  copy 
of  the  marriage  contract,  the 
original  of  which  was  executed 
and  deposited  in  the  public  ar- 
chives of  a  foreign  State,  may  be 
admitted,  not  without  authentica- 
tion, but  by  a  sworn  copy  or  a  copy 
certified  by  the  officers  of  our 
government  when  they  have  suc- 
ceeded to  the  foreign  authority 
and  have  custody  of  the  original, 
or  certified  by  the  foreign  officers 
who,  at  the  time  of  certifying,  had 
custody  of  the  original,  with  proof 
that  the  person  certifying  was  act- 
ing in  the  office,  and  that  his  sig- 
nature is  genuine.  Chouteau  v. 
Chevelier,  1  Mo.  343. 

»  N.  Y.  Code  Civ.  Pro.,  §  956. 
In  Pennsylvania,  ex,  parte  evi- 


304 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


the  oath  of  a  witness,89  as  in  the  case  of  a  voluntary  register 
stated  below. 

The  registry  being  duly  proved,  compliance  with  prelim- 
inary formalities  is  presumed.90 

44.  Registries  not  Authorized  by  Law. 

A  register  kept  without  authority  of  law  is  competent,  in 
evidence  of  the  main  fact,  whether  of  marriage,91  baptism,92 
or  burial,93  and  of  its  date,  but  not  of  other  facts  stated  in  it, 
such  as  date  or  place  of  birth  or  death; 94  but,  to  admit  it, 


dence  of  the  copy  has  long  been 
held  admissible  where  the  regis- 
try is  beyond  seas.  Kingston  v. 
Leslie,  10  Serg.  &  R.  389,  and  cases 
cited. 

89  Jackson  v.  Boneham,  15  Johns. 
226. 

90  Inhabitants  of  Milf ord  v.  In- 
habitants of  Worcester,  7  Mass.  48, 
57.      "The    former    English    rule 
which  recognized  none  but  regis- 
ters and  similar  records  of  churches 
of  the  established  religion  has  been 
abrogated,  in  England,  by  statute, 
so  as  to  open  the  door  to  many 
other  records  which  all  churches 
keep,  and  which  are  as  likely  to  be 
accurate  as  those  of  an  established 
church.    Such  records  serve  a  pur- 
pose equivalent  to  that  served  by 
family  records,  and  in  this  coun- 
try they  are  fairly  to  be  dealt  with 
as  equivalent  to  corporation  rec- 
ords, which  are  generally  evidence 
of  such  matters  as  are  recorded  in 
the  usual  course  of  affairs."    Hunt 
v.   Order   of   Chosen   Friends,   64 
Mich.  671,  8  Am.  St.  Rep.  855, 
31  N.  W.  Rep.  576.    But  compare 
Supreme  Assembly  v.  McDonald, 
59  N.  J.  L.  248,  251,  35  Atl.  Rep. 


1061;  Childress  v.  Cutler,  16  Mo. 
24. 

91  Maxwell  v.  Chapman,  8  Barb. 
579. 

92  Blackburn    v.    Crawfords,    3 
Wall.  182,  189. 

A  church  record  of  baptism  is 
competent  evidence  upon  a  ques- 
tion of  pedigree.  Matter  of  Greco, 
154  N.  Y.  Supp.  306,  90  Misc. 
241. 

93  Lewis  ».  Marshall,  5  Pet.  470, 
476. 

94  Except  to  show  that  the  birth 
or  death  was  prior  to  the  entry. 
5  Pet.  470,  476.     See  paragraphs 
2  and  28  (above).     Unless  shown 
to  have  been  made  under  direction 
of    deceased    relative    or    parent. 
Doe  r.  Bray,  8  B.  &  C.  817. 

A  record  of  the  birth  of  a  person, 
made  by  a  mere  acquaintance  of 
the  family,  while  not  admissible 
as  substantive  evidence  to  prove 
the  date  of  birth,  may  be  received 
in  corroboration  of  the  testimony 
of  the  one  who  made  the  record 
that  at  the  time  she  made  it  she 
had  knowledge  of  the  facts  to  which 
she  testified.  Hyde  v.  Kloos,  134 
Minn.  165, 158  N.  W.  Rep.  920. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  305 

it  must  appear  that  it  was  kept  by  the  proper  officer,95  or  by 
the  officiating  clergyman,96  pursuant  to  his  duty  or  in  the 
usual  course  of  his  functions,97  and  that  he  is  since  deceased; 98 
but  the  fact  that  he  was  not  a  sworn  officer,99  or  that  he  kept 
it  not  as  a  public  record  belonging  to  the  parish,  but  as  his 
private  memorandum,1  does  not  render  it  incompetent,  if 
he  was  under  a  duty  to  keep  it.  It  should  also  appear  that 
the  register  is  produced  from  the  custody  of  his  successor, 
the  entry  being  hi  his  own  handwriting  and  appearing  to 
have  been  made  contemporaneously  with  the  performance 
of  the  rite,  and  before  controversy  arose,  with  no  apparent 
inducement  to  misstate  nor  interest  adverse  to  his  official 
duty;  and  hi  such  case  additional  memoranda  on  the  reg- 
ister, of  fee  paid,  is  not  necessary  to  render  the  paper  com- 
petent.2 If  the  entries  were  made  first  in  a  day-book,  and 
then  transferred  to  the  register,  the  day-book  is  not,  but  the 
register  is,  evidence  of  the  act  entered  in  the  register.3 

If  the  record  is  of  a  public  nature,  such  as  that  of  a  church, 
an  examined  copy  of  the  entries  relied  on,  without  produc- 
tion of  the  original,  is  admissible.4  The  proper  evidence  of 
the  copy  is  testimony  of  the  witness  producing  it,  that  it 
was  taken  at  the  proper  office,  the  record  being  there  pro- 
duced to  him  by  the  lawful  keeper; 5  and  proof  of  the  hand- 

95  Doe  v.  Andrews,  15  Q.  B.  758.  3  Maxwell  v.  Chapman,  8  Barb. 

Compare,  however,  Doe  v.  Bray,  579. 

8  B.  &  C.  813.  "Jackson  v.  King,  5  Cow.  237; 

"Blackburn    v.    Crawfords,    3  Lewis    v.    Marshall,    5    Pet.    470, 

Wall.  175,  183,  189,  191.  476. 

97  Same  cases.  5  Gaines  v.  Relf ,  12  How.  U.  S. 

98  Morrisey  v.  Wiggins  Ferry  Co.  472,  522. 

47  Mo.  521,  s.  P.,  Huntly  v.  Comp-  Where  there  is  no  proof  of  exe- 

stock,  2  Root,  99.     Compare   16  cution  or  recording  of  a  marriage 

Ves.  (by  Sumner)  72,  n.  3.  certificate  it  will  not  be  admitted 

59  Kennedy  v.  Doyle,   10  Allen,  in   evidence.     The   court   cannot 

161.  take  judicial  notice  of  the  capacity 

1  Blackburn         v.        Crawfords  and  signature  of  the  marshal  whose 
(above).  subscription  appears  on  the  cer- 

2  Kennedy  v.   Doyle,   10  Allen,  tificate.     Eames  v.  Woodson,  120 
161.  La.  1031,  46  So.  Rep.  13. 


306  ACTIONS    BY   AND    AGAINST   HEIRS   AND 

writing  of  the  deceased  officer  may  be  made  by  the  witness 
having  inspected  the  signature  in  the  various  places  where  it 
occurred  in  the  register.6  A  copy  certified  under  the  seal  of 
the  corporation,  is  not  evidence  unless  made  so  by  statute.7 
If  the  one  who  made  the  entry  is  living,  the  original  entry 
is  competent,  on  producing  him  as  a  witness  to  testify  to 
accuracy. 

The  marriage  certificate  given  to  the  parties  at  the  time  by 
the  officiating  functionary  is  evidence,  not  only  when  made 
so  by  statute,8  but  also  if  shown  to  be  part  of  the  res  gestce, 
on  independent  evidence  of  the  act,9  especially  if  given  by  a 
public  officer  who  is  since  deceased;  10  or  if  so  preserved  and 
shown  by  either  party  as  to  be  his  or  her  admission  or  dec- 
laration,11 or,  with  lapse  of  time,  to  become  a  family  memo- 
rial, competent  as  hearsay.12 

45.  Best  and  Secondary  Evidence. 

Registers,  even  though  statutory,  are  not  conclusive  ev- 
idence,13 nor  the  only  best  evidence,  so  as  to  exclude  parol,14 
unless  made  so  by  the  statute.  The  object  of  the  register  is 
to  facilitate  the  proof,  not  to  supersede  other  modes.15 

6  Doe  v.  Davies,  10  Q.  B.  325.          Compare  Commonwealth  v.  Mor- 

7  Stoever  v.  Whiteman,  6  Binn.      ris,  1  Cush.  (Mass.)  391. 
416.  12  Paragraph  37   (above). 

"As  in  N.  Y.  Code  Civ.  Pro.,  "Derby  ^  Salem,  30  Vt.  722; 

§  928,  and  in  other  States.  Rice  v.  The  State,  7  Humph.  14. 

Where  the  witnesses  to  a  mar-  14  Viallz?.  Smith,  6R.  1. 419,  even 

riage   certificate   are  without   the  to  supply  a  defect;  Northfield  v. 

jurisdiction  of  the  court,  the  cer-  Plymouth,  20  Vt.  582,  589. 

tificate   will  be  admitted   in   evi-  A  certified  copy  of  a  marriage 

dence    without    their    testimony.  license   and   of   the   certificate   of 

State  v.  MacRae,  83  N.  J.  L.  796,  marriage  is  competent  to  corrobo- 

85  Atl.  Rep.  455.  rate  other  testimony  that  there  was 

9  See   Stockbridge  v.   Quicke,   3  a  marriage.    Witty  v.  Barham,  147 
Car.  &  K.  305.  N.  C.  479,  61  S.  E.  Rep.  372. 

10  Wheeler    v.     McWilliams,     2          15  State  v.  Marvin,  35  N.  H.  22. 
U.  C.  Q.  B.  77;  and  see  10  Allen,          The  marriage  certificate  does  not 
161.  constitute    the    only    evidence    to 

"Hill  v.  Hill,  38  Penn.  St.  511.      prove    the    marriage.      State    v. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  307 

Where  the  register  is  proved,  the  witnesses  who  signed  it 
need  not  be  called.16 

To  prove  that  no  entry  was  made,  the  book  or  paper  of 
entries  is  the  best  evidence.  The  statement  of  the  keeper 
of  the  record,  as  a  witness,  that  no  entry  appeared  is  sec- 
ondary.17 

46.  Impeaching  the  Registry. 

The  fact  of  a  mutilation  or  imperfection  hi  the  register,  not 
material  to  the  series  of  entries  affecting  the  parties; 18  or 
that  the  entry  was  copied  from  another  contemporaneous  or 
collateral  register,  both  records  being  made  in  the  course  of 
duty; 19  or  the  appearance  of  other  entries  not  made  at  the 
proper  tune  or  by  the  proper  person; 20  or,  if  an  official  reg- 
ister, that  the  making  of  the  entry  was  somewhat  delayed,21 
or  was  not  made  on  the  best  information,22  and  the  like  ob- 
jections, go  rather  to  the  credibility  than  the  competency  of 
the  entry. 

VI.  JUDICIAL  RECORDS  SHOWING  FACTS  OF 
FAMILY  HISTORY  (PEDIGREE) 

47.  Letters  of  Administration,  etc. 

Letters  testamentary  or  of  administration,  though  corn- 
Walsh,  25  S.  D.  30, 125  N.  W.  Rep.  Wall.  183.  But  compare  to  the 
295.  contrary,  Smith  v.  Richards, 

Record    evidence    of    marriage  (above). 

is  not  necessary,  and  it  may  be  18  Walker  v.  Wingfield,  18  Ves. 

proved  by  any  kind  of  evidence,  445,  Ld.  ELDON;  and  see  Doe  & 

whether  direct  or  circumstantial.  Jaycoks  v.  Gilliam,  3  Murph.  N.  C. 

Casley  v.  Mitchell,  121  Iowa,  96,  47;Sumnert-.  Seebec,  3  Greenl.  223. 

96  N.  W.  Rep.  725.  As  to  mutilated  portions  of  a 

It  is  not  necessary  to  introduce  Bible  containing  a  family  record, 

the  return  of  the  officiating  min-  — see  In  re  Colbert,  51  Mont.  455, 

ister  or  other  officer,  to  prove  the  153  Pac.  Rep.  1022. 

date  of  a  marriage.    Bronnenburg  19  Doe  v.  Andrews,  15  Q.  B.  756. 

v.  Charman,  80  Ind.  475.  M  Maxwell  v.  Chapman,  8  Barb. 

16Birt    v.    Barlow,     1     Dougl.  579. 

172.  21  Derby  v.  Salem,  30  Vt.  727. 

17  Blackburn    v.     Crawfords,     3  -2  Doe  v.  Andrews,  15  Q.  B.  759. 


308 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


petent  and  sufficient  in  favor  of  or  against  the  representative 
to  prove  his  capacity  to  sue  and  be  sued,23  are  not  competent 
against  any  other  party,  to  prove  the  death  as  a  substantive 
part  of  a  cause  of  action  or  defense,24  unless  by  lapse  of  time 
they  have  become  competent  as  hearsay.25  This  exclusion 
is  an  apparent  exception  to  general  principles,  and  rests  on 
the  imperfect  judicial  character  of  the  proceedings.  The 
statutes  regulating  the  probate  court  may  of  course  be  such 
as  to  make  the  adjudication  competent;  but  as  death  is  the 
jurisdictional  fact,  the  determination  would  not  be  con- 
clusive even  between  the  parties  to  the  proceeding.  On 
other  questions  directly,  not  merely  incidentally,26  hi  issue, 
and  actually  determined  by  the  probate  court,  such  as 
legitimacy  or  illegitimacy,  and  kinship,  a  decree  of  the  sur- 
rogate's court  is  competent  evidence  between  the  parties 
and  those  hi  privity  with  them,27  and  if  the  matter  was  ex- 
clusively within  the  probate  jurisdiction  and  intelligently 
decided,  is  conclusive  ^  both  as  to  personalty w  and 


23  See  paragraph  1.  So  they 
have  been  admitted  after  lapse 
of  time,  where  the  question  of 
death  did  not  affect  the  liability 
of  the  objector,  but  only  the  ques- 
tion as  who  was  the  proper  plaintiff. 
French  v.  French,  1  Dick.  268. 

M  Carroll  v.  Carroll,  60  N.  Y.  123, 
rev'g  2  Hun,  609.  Nor  to  prove  the 
time  of  death,  either  relatively  or 
absolutely.  English  v.  Murray,  13 
Tex.  366;  Ins.  Co.  v.  Tisdale,  91 
U.  S.  (1  Otto)  238. 

The  granting  of  letters  of  ad- 
ministration affords  prima  facie 
evidence  of  death.  Aultman  v. 
Limm,  93  Ind.  158. 

Neither  a  recital  in  the  applica- 
tion for  letters  of  administration 
to  the  effect  that  the  decedent 
left  surviving  him  a  wife,  nor  a 
reference  to  her  in  the  report  of 


the  appraisers  of  the  estate,  nor 
the  statement  made  by  the  alleged 
wife  in  an  affidavit  to  the  effect 
that  she  was  the  wife  of  the  dece- 
dent is  competent  evidence  on  the 
question  of  whether  or  not  the  re- 
lation of  husband  and  wife  existed. 
Berger  v.  Kirby,  135  S.  W.  Rep. 
(Tex.  Civ.  App.)  1122. 

2S  Munro  v.  Merchant,  26  Barb. 
383.  See  U.  S.  v.  Wright,  11  Wall. 
648;  Johnson  v.  Towsley,  13  Id. 
72,  83,  86,  and  cases  cited. 

MAnson  v.  Stein,  6  Iowa 
(Clarke),  150. 

27  Lalonette  v.  Lipscomb,  52 
Ala.  570. 

^Doglioni  v.  Crispin,  L.  R.  1 
H.  L.  301;  and  see  Broderick's 
Will,  21  Wall.  503. 

29Caujolle  v.  Ferrie,  13  Wall. 
469. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  309 

realty; 30  but  as  to  a  third  person  not  strictly  claiming 
under  either  party,  it  is,  at  the  most,  only  prima  facie 
evidence  in  his  favor,  and  is  not  competent  against  him.31 

48.  Judgments  and  Verdicts. 

Personal  judgments,  and  judgments  affecting  particular 
property  only,  are  not  competent  evidence  of  facts  of  heir- 
ship  or  the  like,  recited  in  them,  except  as  against  a  party 
to  the  action  in  which  they  were  recovered,  or  a  person 
claiming  under  him,32  or  as  to  the  particular  property  ad- 
judicated on,33  unless  by  lapse  of  time  the  rule  as  to  hearsay 
makes  them  competent. 

Where  the  circumstances  are  such  that  the  fact  might  be 
established  by  general  reputation,  any  judgment  or  decree, 
or  even  a  verdict,34  of  a  court  of  competent  jurisdiction, 
expressly  or  by  necessary  implication  determining  the  fact, 
is  prima  facie  evidence,  even  against  third  persons. 

A  judgment  in  an  action  for  divorce,  being  in  the  nature 
of  an  action  in  rem,  determines  the  question  of  personal 
status  as  against  all  the  world,  and  is  therefore  competent 
for  or  against  strangers.  Such  a  judgment,  whether  foreign 
or  domestic,  is  to  be  proved  by  the  production  of  the  record, 
or  a  duly  authenticated  copy,  which  should  include  the 
pleadings,  orders,  reports,  etc.,  as  well  as  the  adjudica- 
tion.35 

30  Blackburn    v.    Crawfords,    3  evidence  of  title.  Clarke  v.  Randall, 
Wall.  190.  5  Cow.  16S. 

31  Spencer  0.  Williams,  L.  R.  2  P.  32  Lovell  v.  Arnold,  2  Munf.  167; 
&  D.  230,  237,  and  case?  cited.  Archer    v.    Bacon,    13    Mo.    149; 
Thus  a  decree  of  the  probate  court,  Wardlaw  v.  Hammond,  9  Rich.  (S. 
determining  a  question  of  legiti-  C.)  L.  464. 

macy  of  a  child,  by  determining  33  Whitman  v.  Henneberg,  73  111. 

that  the  parents  were  never  mar-  109. 

ried,  is  not  competent  as  against  34  Pile    v.    McBratney,    15    111. 

other  children  who  were  not  par-  314,  319;  Patterson  v.  Gaines,  6 

ties  to  the  proceedings.    Kearney  How.  (U.  S.)  599. 

v.  Denn,  15  Wall.  57.    So  proceed-  33  Lawrence's  Will  Case,  18  Abb. 

ings  before  the  surrogate  for  ad-  Pr.  347. 

measurement   of   dower,   are   not 


310 


ACTIONS   BY    AND    AGAINST   HEIRS   AND 


VII.  IDENTITY 

49.  Necessity  of  Proof. 

Where  a  given  name  36  appears  with  the  surname,  in  a 
document  or  testimony,  identity  of  the  name  with  that 
appearing  in  other  evidence,  is  sufficient  to  make  a  prima 
facie  case  of  identity  of  person,  if  there  be  a  reasonable 
coincidence  in  whatever  circumstances  of  time,  place,  age, 
legal  character  or  capacity,  etc.,  appear  in  the  case,  and 
nothing  affirmative  to  cast  doubt  on  the  identity.37  Under 


38  Fanning  v.  Lent,  3  E.  D.  Smith, 
206. 

Where  the  given  name  is  written 
the  middle  name  or  letter  may  be 
disregarded  in  identifying  an  in- 
dividual. Riley  v.  Litchfield,  168 
Iowa,  187,  150  N.  W.  Rep.  81, 
Ann.  Cas.  1917,  B.  172. 

Custom  gives  the  wife  the  sur- 
name of  her  husband  but  not  his 
given  or  Christian  name.  In  re 
Taminosian,  9  Neb.  514,  150  N.  W. 
Rep.  824,  Ann.  Cas.  1917,  A.  435. 

Letters  of  the  alphabet,  con- 
sonants as  well  as  vowels,  are  suf- 
ficient to  distinguish  different  per- 
sons having  the  same  surname. 
State  v.  Wasilenskis,  114  Me.  91, 
95  Atl.  Rep.  415. 

"As,  for  instance,  where  the 
name  is  very  common,  or  where 
the  name  of  a  signer  and  of  an 
attesting  witness  is  the  same. 
Jackson  v.  Christman,  4  Wend. 
277;  Richmond  Cedar  Works  v. 
Stringfellow,  236  Fed.  Rep.  264. 

To  prove  identity  of  person, 
identity  of  name  is  usually,  in 
the  first  instance,  sufficient.  Mor- 
ris v.  McClary,  43  Minn.  346,  46 
N.  W.  Rep.  238,  citing  text. 


Identity  of  person  is  presumed 
from  identity  of  name  under  Code 
Civ.  Pro.  (Cal.),  §  1963.  People 
v.  Rolfe,  61  Cal.  540. 

Identity  of  name  is  presumptive 
of  identity  of  person,  where  there 
are  not  two  or  more  persons  in 
the  same  community  or  vicinity 
bearing  the  same  name.  Garrett 
v.  State,  76  Ala.  18. 

The  rule  that  identity  of  name  is 
prima  fade  identity  of  person  does 
not  apply  where  the  transaction 
is  remote.  It  would  work  great 
injustice  if  rights  of  property,  after 
a  great  length  of  time,  were  al- 
lowed to  depend  upon  mere  iden- 
tity of  name.  Sailor  v.  Hertzogg, 
2  Pa.  182;  Sitler  v.  Gehr,  105  Pa. 
St.  577,  51  Am.  Rep.  207. 

The  identity  of  a  person  named 
in  a  deed  may  be  shown  by  parol 
evidence.  Laclede  Land,  etc.,  Co. 
».  Murphy,  264  Mo.  523,  175 
S.  W.  Rep.  183. 

In  an  action  on  a  record  identity 
of  name  is  prima  facie  identity 
of  person.  Barlow  v.  Marrone,  88 
N.  J.  L.  187,  95  Atl.  985. 

Identity  of  a  person  may  be  pre- 
sumed from  identity  of  name,  but 


NEXT    OF    KIN,    DEVISEES    AND    LEGATEES 


311 


such  circumstances,  proof  of  identity  of  the  person  named  hi 
a  record,  whether  a  register  of  baptism,  marriage,38  etc.,  or  a 
judgment,39  is  unnecessary  in  the  first  instance.  The  prac- 
tice in  this  State  is  to  leave  it  to  the  adverse  party  to  give 
some  evidence  against  identity.  This  is  a  principle  recog- 
nized in  civil  cases  generally.40 


the  presumption  will  be  rebutted 
by  even  very  slight  evidence  to 
the  contrary.  Keyes  v.  Munroe, 
266  Mo.  114,  180  S.  W.  Rep. 
863. 

If  a  person  is  described  by  a 
wrong  name  in  a  deed  this  is  at 
most  only  a  misnomer  which  can 
be  explained  by  parol  evidence. 
Troy,  etc.,  Gold  Mining  Co.  v. 
Snow  Lumber  Co.,  170  N.  C.  273, 
87  S.  E.  Rep.  40. 

38  Jackson  v.  King,  5  Cow.  241 
(disapproving  1  Campb.  196,  4  Id. 
34).  Entries  in  a  church  register, 
showing  that  W.  A.  had  a  son  bap- 
tized as  S.,  that  years  after  S.  A. 
had  a  daughter  baptized  as  M., 
and  that  years  after  M.  A.  was 
married  to  P.,  is  sufficient  evidence 
to  go  to  the  jury  that  P.  married 
a  granddaughter  of  W.  A.,  if  noth- 
ing appears  to  show  that  there  ever 
were  other  persons  of  those  names. 
It  may  be  presumed  that  the  per- 
sons named  in  the  register  were 
the  ancestors  of  the  claimant, 
where  all  bore  the  appropriate 
names,  the  dates  of  the  several 
baptisims  and  marriages  being  at 
such  distance  of  time  from  each 
other  as  to  be  consistent  with  the 
claim.  Id.  This  appears  also  to 
be  the  modern  English  rule.  Hub- 
bard  v.  Lees,  L.  R.  1  Ex.  255. 
Contra,  Middleton  v.  Sandford,  4 


Campb.  34;  Mooers  v.  Bunker, 
29  N.  H.  420;  Morrisey  v.  Wiggins 
Ferry  Co.,  47  Mo.  525,  1  Whart. 
Ev.  623,  §  655. 

The  Christian  or  given  name 
may  consist  of  letters  only,  and 
there  is  no  presumption  that  letters 
stand  for  other  names  and  are 
not  themselves  the  Christian  name 
of  the  party.  Riley  v.  Litchfield, 
168  Iowa,  187,  150  N.  W.  Rep.  87, 
Ann.  Cas.  1917,  B.  373. 

A  photograph  identified  by  a 
person  as  a  picture  of  himself  is 
admissible.  Wong  Back  Sue  x. 
Connell,  233  Fed.  Rep.  659,  147 
C.  C.  A.  467. 

"Hatcher  v.  Rocheleau,  18  N. 
Y.  86;  Yucker  ».  Morris,  86  N.  J. 
Eq.  181,  98  Atl.  259  (rev'g  85 
N.  J.  Eq.  476,  97  Atl.  Rep. 
42). 

A  judgment  expressed  to  be 
merely  for  or  against  the  "plain- 
tiff" or  the  "defendant"  will  be 
sufficient  if  the  names  of  the  par- 
ties thus  designated  can  be  as- 
certained without  ambiguity  from 
other  parts  of  the  record.  Siek- 
mann  v.  Kern,  136  La.  1068,  68 
So.  Rep.  128,  Ann.  Cas.  1916,  D. 
1228  (citing  Black  on  Judgments 
Vol.  1,  §  116). 

40  Bogue  v.  Bigelow,  29  Vt.  183, 
2  Phil.  Ev.  508,  and  note,  1  Greenl. 
Ev.,  §  38,  note.  Otherwise  in 


312 


ACTIONS  BY  AND   AGAINST  HEIRS  AND 


60.  Mode  of  Proof. 

Identity  of  person  may  be  proved  by  the  direct  testimony 
of  a  witness  having  means  of  knowledge; 41  and  photographs 
as  well  as  other  miniatures,  shown  to  be  good  likenesses,  are 
competent,  in  connection  with  testimony,  to  identify  the 
person.42  Evidence  showing  correspondence  of  age,  per- 


criminal  cases.  Wedgwood's  Case, 
8  Greenl.  75. 

Identity  of  names  is  prime  facie 
identity  of  persons;  the  burden 
of  proof  is  upon  those  who  dispute 
the  identity  to  establish  the  con- 
trary. Lee  v.  Murphy,  119  Cal. 
364,  51  Pac.  Rep.  549,  955. 

The  presumption  of  identity 
arising  from  evidence  of  sameness 
of  name,  is  not  conclusive,  nor 
will  it  arise  where  different  persons 
have  the  same  names  except  as  to 
their  middle  name  or  initial.  Gray 
v.  Missouri  Lumber  &  Mining  Co. 
(Mo.),  177  S.  W.  Rep.  595. 

Where,  in  a  policy  of  insurance, 
a  loss,  if  any  is  made  payable  to  a 
person  of  the  same  name  as  the 
plaintiff  with  the  added  words  "as 
trustee,"  the  identity  of  the  person 
will  be  assumed  from  the  identity 
of  the  names.  Boskowitg  v.  Con- 
tinental Ins.  Co.,  175  App.  Div. 
18, 161  N.  Y.  Supp.  680. 

41  The  testimony  of  a  grand- 
mother that  she  verily  believed  the 
person  produced  in  court  to  be  the 
one  baptized  as  a  child  as  proved 
by  the  register  is  sufficient  evi- 
dence of  identity,  for  the  jury. 
Queen  v.  Weaver,  L.  R.  2  C.  C. 
Res.  85,  s.  c.,  7  Moak's  Eng.  323. 
So  evidence  that  the  woman  was 
formerly  known  by  the  maiden 


name  mentioned  in  the  marriage 
register,  and  that  the  parties  co- 
habited as  husband  and  wife,  is 
proof  of  identity.  State  v.  Wallace, 
8  N.  H.  515,  517. 

If  a  person  calls  himself  Smith  it 
is  some  evidence  that  he  is  Smith; 
evidence  of  conversations  with 
him  by  witnesses  will  be  admitted. 
Reynolds  v.  Staines,  2  C.  &  K. 
745,  62  E.  C.  L.  745. 

Ex  necessitate  rei,  and  as  a  mat- 
ter of  common  sense,  the  declara- 
tions of  a  decedent  as  to  who  he 
was  and  where  he  came  from 
should  always  be  received  in  evi- 
dence. They  are  of  the  same  na- 
ture as  declarations  against  in- 
terest. If  such  be  not  the  rule 
of  law,  it  would  be  impossible 
legally  to  establish  the  identity 
of  very  many  travelers  and  strang- 
ers who  die  among  strangers  in 
distant  lands,  although  in  point 
of  fact  there  may  not  be  in  any 
man's  mind  the  slightest  doubt 
as  to  who  they  are.  Wise  v.  Wynn, 
59  Miss.  588,  42  Am.  St.  Rep. 
381. 

"Ruloffs  Case,  11  Abb.  Pr.  (N. 
S.)  245,  s.  c.,  45  N.  Y.  213;  Luke  v. 
Calhoun,  52  Ala.  115;  Udderzook 
v.  Commonwealth,  76  Perm.  St. 
340;  R.  v.  Folsom,  4  F.  &  F. 
103. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


313 


sonal  appearance,  dialect,  habits,  manners,  calling,  places  of 
resort,  etc.,  is  also  competent.43 


NATIONAL  CHARACTER,  AND  DOMICILE 

61.  Citizenship  and  Alienage. 

Citizenship  may  be  proved  by  proving  birth,  at  any  place, 
from  a  father,  a  citizen  of  the  United  States,  whether  he  was 
native  born  or  not; 44  or  birth  in  this  country  since  the  war 
of  the  Revolution,  without  reference  to  the  alienage  or  cit- 
izenship of  the  parents.45  Alienage  may  be  proved  by  prov- 


43  See  Jackson  v.  Etz,  5  Cow. 
316;  Lindsay  v.  People,  63  N.  Y. 
143;  Cunningham  v.  Burdell,  4 
Bradf.  343. 

On  the  question  of  identity  it  is 
admissible  to  show  the  name  which 
the  person  bore,  his  personal  ap- 
pearance and  conversation,  and 
the  account  he  gave  of  himself,  his 
family  connections,  and  associa- 
tions. Mullery  v.  Hamilton,  71 
Ga.  720,  51  Am.  St.  Rep.  288; 
Nehring  v.  McMurrain,  45  S.  W. 
Rep.  (Tex.  Civ.  App.)  1032;  Cuddy 
v.  Brown,  78  111.  415;  Young  v. 
State,  36  Ore.  417,  59  Pac.  Rep. 
812,  60  Pac.  Rep.  711,  47  L.  R.  A. 
548. 

"  Young  v.  Peck,  21  Wend.  389; 
U.  S.  R.  S.,  §  1993.  (U.  S.  Comp. 
Stats.,  §  3947.) 

A  child  born  in  a  foreign  country, 
but  whose  father  is  a  citizen  of  the 
United  States  at  the  time,  is  also 
a  citizen  of  the  United  States. 
Buckley  v.  McDonald,  33  Mont. 
483,  84  Pac.  Rep.  1114." 

When  the  husband  of  an  alien 
woman  becomes  a  naturalized  citi- 
zen, she,  as  well  as  her  infant  son, 


dwelling  in  this  country,  become 
citizens  of  the  United  States  as 
fully  as  if  they  has  become  such  in 
the  special  mode  prescribed  by 
the  naturalization  laws.  United 
States  v.  Rodgers,  144  Fed.  Rep. 
711. 

Citizenship  as  between  the  va- 
rious States  depends  upon  domicile. 
In  re  Sedgwick,  223  Fed.  Rep.  655. 

"One  may  be  a  citizen  of  the 
United  States,  and  yet  not  be  a 
citizen  of  anj*  State."  Hough  v. 
Socie"te  Electrique  Westinghouse 
de  Russia,  231  Fed.  Rep.  341. 

46  McKay  v.  Campbell,  2  Saw- 
yer, 118,  s.  c.,  5  Am.  L.  T.  407; 
Lynch  v.  Clarke,  1  Sandf.  583,  638. 
Compare  as  to  expatriation,  Lud- 
lam  v.  Ludlam,  26  N.  Y.  363,  affi'g 
31  Barb.  486,  14  Op.  U.  S.  Att.- 
Gen.  295;  Op.  N.  Y.  Att.-Gen. 
380;  Juando  v.  Taylor,  2  Paine, 
652. 

Children  born  in  this  country 
and  under  its  jurisdiction,  become 
at  once,  by  virtue  of  such  birth, 
American  citizens.  Ehrlick  v. 
Weber,  114  Term.  711,  88  S.  W. 
Rep.  188. 


314 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


ing  birth  in  a  foreign  country,  from  a  father  not  a  citizen 
of  this  country,  or  who  never  resided  in  this  country; 46 
or  birth  in  this  country  prior  to  the  declaration  of 
independence,  and  withdrawal  or  removal  from  this 
country  without  ever  having  adhered  to  our  government.47 
Marriage  to  an  American,  of  an  alien  woman  who  might 


A  person  born  in  this  country, 
though  of  alien  parents  who  had 
never  been  naturalized,  and  who 
are  not  engaged  in  diplomatic  serv- 
ice, who  continues  to  reside  here, 
is  deemed  a  citizen  of  the  United 
States.  Stadtler  v.  School  Dist. 
No.  40,  71  Minn.  311,  73  N.  W. 
Rep.  956. 

A  child  born  in  the  United 
States,  of  parents  of  Chinese  de- 
scent, who,  at  the  time  of  his 
birth,  are  subjects  of  the  Emperor 
of  China  but  have  a  permanent 
domicile  and  residence  in  the 
United  States,  and  are  there  car- 
rying on  business,  and  are  not  em- 
ployed in  any  diplomatic  or  offi- 
cial capacity  under  the  Emperor 
of  China,  becomes  at  the  time  of 
his  birth  a  citizen  of  the  United 
States,  by  virtue  of  the  first  clause 
of  the  Fourteenth  Amendment  of 
the  Constitution,  "All  persons 
born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdic- 
tion thereof,  are  citizens  of  the 
United  States  and  of  the  State 
wherein  they  reside."  United 
States  v.  Wong  Kim  Ark,  169  U. 
S.  649,  18  S.  Ct.  456,  42  L.  ed. 
890,  affi'd  71  Fed.  Rep.  382;  Sing 
Tuck  v.  United  States,  63  Cir.  Ct. 
App.  199,  128  Fed.  Rep.  592, 
rev'g  126  Fed.*Rep.  386. 

Notwithstanding  the  Chinese  Ex- 


clusion Acts,  a  child  born  in  this 
country  of  Chinese  parents  who 
although  subjects  of  China,  had  a 
permanent  domicile  and  residence, 
and  carried  on  business  here,  is  a 
citizen  of  the  United  States.  Ng 
You  Nuey  v.  U.  S.,  224  Fed.  Rep. 
340,  140  C.  C.  A.  26;  U.  S.  v.  Chin 
King,  225  Fed.  Rep.  794. 

48  See  Shanks  v.  Dupont,  3  Pet. 
247;  U.  S.  R.  S.,  §1993;  U.  S. 
Comp.  Stats.,  §  3947;  U.  S.  v.  Gor- 
don, 5  Blatchf.  18;  Young  v.  Peck, 
21  Wend.  389. 

A  native  of  Porto  Rico  who  re- 
sided there  prior  to  April  11,  1899, 
and  came  to  New  York  in  1902  is 
not  an  alien  immigrant  and  cannot 
be  deported.  Gonzales  v.  Wil- 
liams, 192  U.  S.  1,  24  Sup.  Ct.  177, 
48  L.  ed.  317. 

47  See  Tnglis  v.  Sailors'  Snug  Har- 
bor, 3  Pet.  99;  Hollingsworth  v. 
Duane,  Wall.  C.  Ct.  51. 

One  who  was  born  in  Massachu- 
setts in  1771,  and  lived  there  until 
1807  when  he  moved  to  Canada, 
though  born  a  British  subject,  by 
his  continued  residence  in  this 
country  after  the  Declaration  of 
Independence,  giving  allegiance  to 
the  new  government,  established 
his  American  citizenship.  State 
v.  Jackson,  79  Vt.  504,  65  Atl. 
Rep.  657,  8  L.  R.  A.  N.  S. 
1245. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


315 


lawfully  be  naturalized,  makes  her  a  citizen;  **  in  other  cases 
marriage  does  not  alter  the  woman's  citizenship.49  Evidence 
that  one  deceased  was  reputed  to  be  of  a  specified  foreign 
nationality,  and  had  the  appearance  and  dialect  thereof,  is 


«  U.  S.  Comp.  Stats.,  §  3948. 

An  alien  woman  who  comes  to 
this  country  and  who,  while  pro- 
ceedings for  her  deportation  are 
pending,  marries  an  American  cit- 
izen, must  be  discharged  from  cus- 
tody on  the  ground  that  her  hus- 
band's domicile  is  her  domicile. 
Hopkins  v.  Fachant,  65  Cir.  Ct. 
App.  1,  130  Fed.  Rep.  839. 

Under  §  1994,  U.  S.  Rev.  Stat., 
any  woman  who  is  now  or  may 
hereafter  be  married  to  a  citizen 
of  the  United  States,  and  who 
might  herself  be  lawfully  natural- 
ized, shall  be  deemed  a  citizen. 

This  applies  to  women  of  African 
blood  who  under  the  Act  of  July 
14,  1870,  are  eligible  to  become 
naturalized.  Broadis  v.  Broadis, 
86  Fed.  Rep.  951;  Dorsey  v.  Brig- 
ham,  177  111.  250,  52  N.  E.  Rep. 
303,  42  L.  R.  A.  809,  69  Am.  St. 
Rep.  228. 

Where  an  alien  woman  marries 
in  this  country  her  status  as  an 
alien  is  unchanged  unless  it  is 
shown  that  the  man  whom  she 
married  was  a  citizen.  Lehigh 
Valley  Coal  Co.  v.  Washko,  231 
Fed.  Rep.  42,  145  C.  C.  A.  230. 

When  an  alien  woman  marries  a 
citizen  of  this  country  her  infant 
child,  by  a  former  marriage,  dwell- 
ing in  this  country,  as  well  as  she 
herself,  becomes  a  citizen  of  the 
United  States.  In  re  Cimorelli, 
155  N.  Y.  Supp.  509,  91  Misc.  604. 


49  Beck  v.  McGillis,  9  Barb.  35, 
49;  Shanks  v.  Dupont,  3  Pet.  242. 
Compare  Citizenship,  14  Op.  U. 
S.  Att.-Gen.,  402. 

A  woman,  a  citizen  of  the  United 
States,  does  not  lose  that  citizen- 
ship by  marriage  to  an  alien,  so 
long  as  she  continued  to  reside  in 
the  United  States.  Wallenburg  v. 
Missouri  Pac.  Ry.  Co.,  159  Fed. 
Rep.  217. 

The  political  status  of  an  Amer- 
ican woman  who  marries  a  citizen 
of  France  follows  that  of  her  hus- 
band, with  the  modification  that 
there  must  be  a  withdrawal  from 
her  native  country,  or  an  equiva- 
lent act  expressive  of  her  election 
to  renounce  her  former  citizenship 
as  a  consequence  of  her  marriage. 
Ruckgaber  v.  Moore,  104  Fed.  Rep. 
947,  31  N.  Y.  Civ.  Proc.  310,  aff'd 
in  52  Cir.  Ct.  App.  587,  114  Fed. 
Rep.  1020. 

The  Act  of  Congress  March  2, 
1907,  34  Stats.  1228,  ch.  2534, 
section  3,  provides:  "That  any 
American  woman  who  marries  a 
foreigner  shall  take  the  nationality 
of  her  husband.  At  the  termina- 
tion of  the  marital  relation  she 
may  resume  her  American  citizen- 
ship, if  abroad,  by  registering  as 
an  American  within  one  year  with 
a  consul  of  the  United  States,  or  if 
residing  in  the  United  States  at  the 
termination  of  the  marital  relation, 
by  continuing  to  reside  therein." 


316 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


presumptive  evidence  of  alienage.50  Residence,  if  material 
on  a  question  of  national  character,  may  be  proved  as  in 
case  of  domicile. 

52.  Naturalization. 

A  record  of  the  judgment  of  a  competent  court,  admitting 
an  alien  to  become  a  citizen,  and  reciting  the  facts  which 
entitled  the  alien  thereto,  is  conclusive,  and  is  complete 
evidence  of  its  own  validity;  it  cannot  be  impeached  in 
collateral  proceedings,  by  proof  contradicting  these  facts.51 


50  Jackson  v.  Etz,  5  Cow.  314. 

A  man  lived  at  the  time  of  his 
death  in  this  country  and  left  sur- 
viving him  a  widow  and  children, 
all  of  whom  were  dependent  upon 
him  for  support,  but  were  resident 
in  a  foreign  country.  In  the  al> 
sence  of  a  record  showing  the  coun- 
try of  his  birth,  it  must  be  presumed 
that  he  was  a  citizen  of  the  foreign 
country  in  which  his  family  re- 
sided, and  this  presumption  will 
continue  until  a  change  of  citizen- 
ship is  proved.  Hamilton  v.  Erie 
R.  R.  Co.,  219  N.  Y.  343,  114  N. 
E.  Rep.  399. 

61  McCarthy  v.  Marsh,  5  N.  Y. 
(1  Seld.)  263,  and  cases  cited. 
Compare  Case  of  Stern,  13  Op.  U. 
S.  Att.-Gen.,  376. 

Proceedings  in  a  court  of  record 
under  U.  S.  Rev.  Stat.,  §§  1993, 
2165,  2171  and  2172,  being  the 
naturalization  laws,  are  judicial, 
and  result  in  a  judgment  which 
can  be  impeached  only  as  other 
judicial  judgments  may  be.  Mu- 
tual Ben.  L.  Insurance  Co.  v.  Tis- 
dale,  91  U.  S.  238,  23  L.  ed.  314; 
Boyd  v.  Nebraska,  143  U.  S.  135, 
12  Sup.  Ct.  375,  36  L.  ed.  103. 

No  inquiry  can  be  made  in  any 


controversy  to  attack  the  suffi- 
ciency of  the  final  admission  to  cit- 
izenship by  showing  a  want  of  con- 
formity to  the  previous  require- 
ments of  the  statutes.  Andres  v. 
Ottawa  Cir.  Judge,  77  Mich.  85, 
43  N.  W.  Rep.  857,  6  L.  R.  A.  238. 

An  order  made  by  a  court  of 
competent  jurisdiction,  admitting 
an  alien  to  citizenship  is  a  judg- 
ment of  the  same  dignity  as  any 
other  judgment  of  a  court  having 
jurisdiction.  Spratt  v.  Spratt,  4 
Pet.  (U.  S.)  393,  7  L.  ed.  897; 
United  States  v.  Norsch,  42  Fed. 
Rep.  417;  Tinn  v.  U.  S.  Dist. 
Atty.,  148  Cal.  773,  84  Pac.  Rep. 
152,  113  Am.  St.  Rep.  354. 

A  judgment  of  a  court  showing 
on  its  face  that  it  has  admitted  a 
Japanese  to  citizenship  of  the 
United  States  is  void  under  §  2169, 
U.  S.  Rev.  Stat.,  under  which  Jap- 
anese are  not  eligible  to  citizenship, 
and  may  be  attacked  at  any  time 
and  in  any  proceeding,  and  the 
same  may  be  disregarded.  In  re 
Takuji  Yamashita,  30  Wash.  234, 
70  Pac.  Rep.  482,  59  L.  R.  A.  671, 
94  Am.  St.  Rep.  860. 

A  decree  of  naturalization  may 
be  set  aside  if  obtained  by  fraud 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


317 


A  certified  copy  of  a  record  of  naturalization  in  another  State, 
certified  according  to  the  act  of  Congress  to  allow  it  to  be 
admissible  in  evidence,  is  admissible,  without  further  proof 
that  it  has  been  in  the  custody  of  the  clerk,  etc.,  and  without 
extraneous  proof  of  any  of  the  preliminaries  of  naturaliza- 
tion.52 If  the  local  law  requires  any  further  declaration  or 
oath  as  a  condition  of  holding  lands,  there  must  be  evi- 
dence tending  to  show  that  the  condition  was  complied 
with.53 


or  perjury.  The  wrong  is  to  the 
nation  and  to  the  State,  and  there- 
fore some  public  authority,  and 
not  a  private  citizen,  may  impugn 
the  action  of  the  court.  McCarren 
v.  Cooper,  16  N.  Y.  App.  Div. 
311,  44  N.  Y.  Supp.  695,  aff'd 
162  N.  Y.  654,  57  N.  E.  Rep. 
1116. 

A  certificate  of  naturalization 
issued  by  a  court  having  jurisdic- 
tion cannot  be  vacated  or  annulled 
solely  on  the  ground  that  it  was 
procured  by  perjured  testimony. 
United  States  v.  Gleeson,  33  Cir. 
Ct.  App.  272,  90  Fed.  Rep.  778, 
affi'g  78  Fed.  Rep.  396;  United 
States  v.  Throckmorton,  98  U.  S. 
61,  25  L.  ed.  93;  Marshall  v. 
Holmes,  141  U.  S.  598,  12  Sup. 
Ct.  62,  35  L.  ed.  870;  Bailey  v. 
Sundberg,  1  Cir.  Ct.  App.  387,  49 
Fed.  Rep.  583. 

The  admission  to  citizenship  of 
aliens  is  not  a  right,  but  a  privilege. 
Congress  may  prescribe  the  con- 
ditions upon  which  these  high 
privileges  may  be  enjoyed,  and 
may  commit  to  any  official  or  tri- 
bunal the  determination  of  any 
questions  of  fact  upon  which  the 
privilege  may  depend.  When  an 
applicant  has  met  all  the  require- 


ments of  the  law,  the  privilege  ac- 
corded him  ripens  into  a  right. 
U.  S.  «.  Shanahan,  232  Fed.  Rep. 
169. 

Aliens  are  admitted  to  citizen- 
ship upon  their  solicitation,  and 
not  as  of  right,  and  where  the  court 
is  deceived  by  the  evidence  as  to 
the  applicant's  good  moral  char- 
acter, the  certificate  issued  may  be 
cancelled.  U.  S.  v.  Raverat,  222 
Fed.  Rep.  1018. 

The  Circuit  Court  of  Appeals 
has  no  jurisdiction  to  review  a 
decree  admitting  an  alien  to  cit- 
izenship. U.  S.  v.  Neugebauer, 
221  Fed.  Rep.  938,  137  C.  C.  A. 
508. 

The  federal  courts  have  no 
power  to  change  the  name  of  a 
naturalized  citizen  except  at  the 
time  and  as  a  part  of  the  process 
of  naturalization.  In  re  Holland, 
237  Fed.  Rep.  735. 

A  declaration  of  intention,  being 
a  record  of  the  court,  may  be 
amended  by  the  court  in  which 
the  petition  is  filed.  U.  S.  v.  Viaro- 
pulos,  221  Fed.  Rep.  485. 

82  People  v.  Shyder,  41  N.  Y.  397, 
affi'g  51  Barb.  589. 

53  Blight  v.  Rochester,  7  Wheat. 
535. 


318 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


53.  Nature  of  the  Question  of  Domicile. 

Amid  the  conflict  of  opinion  and  decision  on  questions  of 
domicile,  an  important  guide  is  to  bear  in  mind  that  for  pur- 
poses of  succession  the  object  of  the  inquiry  is,  to  ascertain 
what  jurisdiction,  what  law,  this  person's  aggregate  of  legal 
rights  and  liabilities  was  under.  For  other  purposes,54  a 


54  Such  as  taxation,  voting,  settle- 
ment, etc. 

In  the  decision  of  a  question  of 
domicile,  it  is  hardly  possible  that 
a  decision  in  one  case  can  be  of 
much  value  in  the  decision  of  an- 
other, for  the  question  is  always 
one  of  fact,  depending  upon  all 
the  facts  in  evidence,  and  but 
slight  difference  in  any  two  cases 
will  justify  and  may  demand  con- 
trary conclusions.  Ashland  v.  City 
of  Catlettsburg,  172  Ky.  365,  189 
S.  W.  Rep.  454. 

The  law  recognizes  a  distinc- 
tion between  residence  and  domi- 
cile. Domicile  is  of  more  extensive 
signification  than  residence,  and 
includes  beyond  mere  physical 
presence  at  a  particular  locality, 
an  intention  to  constitute  it  a 
permanent  abiding  place.  One 
cannot  have  two  domiciles  at  the 
same  time,  but  is  always  deemed 
to  have  one.  In  re  Davis,  217 
Fed.  Rep.  113. 

In  many  instances  there  is  a 
difference  between  the  legal  in- 
tendment  of  the  terms  "resi- 
dence" and  "domicile,"  but  in  the 
matter  of  succession  and  transfer 
taxes  the  theory  of  the  taxing 
power  renders  the  terms  synomy- 
mous.  Matter  of  Martin,  173  App. 
Div.  1, 158  N.  Y.  Supp.  915. 

The  terms  "domicile"  and  "in- 


habitancy" are  synonymous.  Ex 
parte  White,  228  Fed.  Rep.  88. 

"Residence"  and  "domicile" 
as  the  latter  word  is  employed 
under  the  law  of  succession,  are 
not  synonymous  and  convertible 
terms.  A  man  may  have  two  resi- 
dences but  only  one  place  of  domi- 
cile. There  must  be  a  concurrence 
of  actual  residence,  and  the  inten- 
tion to  remain  in  order  to  acquire 
a  domicile.  Worsham  v.  Ligon, 
144  Ga.  707,  87  S.  E.  Rep. 
1025. 

The  presumption  is  that  where 
a  person  lives,  there  is  his  domicile, 
especially  where  he  has  no  family 
elsewhere,  and  while  no  particular 
length  of  residence  is  necessary 
to  fix  a  person's  domicile,  yet  in 
the  absence  of  any  avowed  inten- 
tion and  of  acts  which  indicate  the 
contrary  intention,  a  long  continued 
residence  is  regarded  as  a  control- 
ling circumstance  in  determining 
'the  question  of  domicile.  Reed  v. 
Reed,  59  Pa.  Super.  178. 

The  law  will,  from  the  facts  and 
circumstances,  fix  a  legal  residence 
for  a  person,  unless  he  voluntarily 
fixes  it  himself,  and,  when  his 
legal  residence  is  once  fixed,  it 
requires  both  fact  and  intention 
to  change  it.  Denny  v.  Sumner 
County,  134  Term.  468,  184  S.  W. 
Rep.  14. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


319 


person  may  belong  to  several  places,  in  the  legal  sense,  and 
the  law  looks  at  his  interests  distributively  to  ascertain  the 
locality  for  each  purpose.  But  for  purposes  of  succession 
the  inquiry  is  not  as  to  the  locality  of  any  one  class  of  in- 
terests, nor  even  of  his  chief  interests  nor  political  allegiance, 
but  we  are  to  look  at  the  aggregate  of  his  civil  interests  as 
an  entirety, — the  universitas  juris,  of  the  Roman  law, — and 
ask  where  in  legal  society  was  this  entirety  centered;  in 
what  jurisdiction  did  this  aggregation,  considered  as  a  whole, 
subsist? 

54.  Presumptions  and  Material  Facts. 

The  domicile  of  a  person  sui  juris  is  proved  by  showing  a 
residence  at  a  particular  place,  or  at  least  within  a  particular 
jurisdiction,  accompanied  with  either  direct  or  presumptive 
evidence  of  an  intention  to  remain  there  for  a  tune  not 
limited.55  If  nothing  appears  indicating  that  the  person  ever 


"Mitchell  v.  U.  S.,  15  Wall. 
350;  Guier  v.  O'Daniel,  1  Binn. 
349,  n. 

The  domicile  of  a  man  is  the 
place  where  he  has  his  true,  fixed, 
permanent  home,  and  to  which 
he  intends  to  return  whenever  he 
he  is  away  from  it.  Plant  v.  Har- 
rison, 36  N.  Y.  Misc.  649,  74  N.  Y. 
Supp.  411;  Dupuy  v.  Wurtz,  53 
N.  Y.  556. 

The  term  "residence"  used  by 
the  Constitution  in  fixing  the  quali- 
fications of  voters,  does  not  mean 
domicile.  Estopinal  v.  Michel, 
121  La.  879,  46  So.  Rep.  907,  19 
L.  R.  A.  (N.  S.)  759. 

Residence,  as  contradistinguished 
from  a  temporary  place  of  exist- 
ence, is  the  place  of  abode,  dwelling 
or  habitation  for  some  continuous 
time.  Griffin  v.  Woolford,  100  Va. 
473,  41  S.  E.  Rep.  949. 


Residence  necessarily  involves 
the  idea  of  a  local  habitation  or 
place  of  abode.  Whitbeck  v. 
Marshall-Wells  Hardware  Co.,  188 
111.  154,  58  N.  E.  Rep.  929,  affi'g 
88  111.  App.  101. 

As  domicile  and  residence  are 
usually  in  the  same  place,  they  are 
frequently  used,  even  in  our  stat- 
utes, as  if  they  had  the  same  mean- 
ing, but  they  are  not  identical 
terms,  for  a  person  may  have  two 
places  of  residence,  as  in  the  city 
and  country,  but  only  one  domicile. 
Residence  means  living  in  a  par- 
ticular locality,  but  domicile  means 
living  in  that  locality  with  intent 
to  make  it  a  fixed  and  permanent 
home.  Residence  simply  requires 
bodily  presence  as  an  inhabitant 
in  a  given  place,  while  domicile 
requires  bodily  presence  in  that 
place  and  also  an  intention  to 


320  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

had  a  different  origin  or  residence,  proof  of  the  mere  fact  of 
his  being  at  a  place,  without  more,  is  sufficient  prima  Jade 
evidence  that  he  was  then  domiciled  there,  to  put  upon  the 
adverse  party  the  burden  of  rebutting  the  evidence,56  which 
may  be  done  by  showing  that  his  presence  there  was  either 
for  a  temporary  purpose,57  or  by  constraint; 58  but  the  place 
where  one  is,  for  however  short  a  tune,  may,  if  he  never  had 
any  other  domicile,  be  deemed  to  be  his  domicile,  at  least  for 
the  purpose  of  defining  his  capacities  while  there.  Usually, 
however,  there  is  evidence  of  an  abode;  and  the  place  where 
the  person  "lives"  is  taken  to  be  his  domicile  until  facts 
adduced  establish  the  contrary.59  Thus  an  immigrant  having 
abandoned  his  domicile  abroad,  and  come  with  his  family 
to  this  country  with  intent  to  seek  a  home  here,  acquires  a 
domicile  at  the  port  where  he  comes  within  our  jurisdiction,  . 
which  continues  until  his  movement  and  intent  manifest 
the  adoption  of  another.60  Showing  long  continued  residence 
within  a  jurisdiction  other  than  that  of  the  domicile  of  origin, 

make  it  one's  domicile.     Matter  120  Ky.  536,  27  Ky.  Law  Rep.  909, 

of    Newcomb,    192    N.    Y.    238,  87  S.  W.  Rep.  291, 9  Ann.  Gas.  264. 

84  N.  E.  Rep.  950,  affi'g  122  App.  «•  Bruce  ».  Bruce,  2  Bos.  &  P. 

Div.  920,  107  N.  Y.  Supp.  1139.  230,  n.,  Ld.  THURLOW;  Bempde  v. 

The  words  "inhabitant,"  "citi-  Johnstone,  3  Ves.  201;  Mann  v. 

zen"  and   "resident"   mean  sub-  Clark,  33  Vt.  55,  60. 

stantially  the  same  thing,  and  one  57  Bruce  v.  Bruce  (above), 

is  an  inhabitant,  resident  or  citi-  A  man's  domicile  is  determined 

zen  of  the  place  where  he  has  his  by   his   actual    residence    coupled 

domicile  or  home.    State  v.  Banta,  with  his  intention  to  remain,  ir- 

71  Mo.  App.  32.  respective  of  the  residence  of  his 

The  residence  of  an  orphan  child  family.      McCord   v.    Rosene,    39 

is   the  place  in  which  its  foster  Wash.  1,  SO  Pac.  Rep.  793. 

parent  provides  it  with   a  home  M  Bempde  v.  Johnstone  (above) . 

and  gives  it  parental  care.    People  5»  Bruce  v.  Bruce,  2  Bos.  &  P. 

T.  Hendrickson,  54  Misc.  Rep.  337,  229,  n.;   Bempde  v.  Johnstone,  3 

104  N.  Y.  Supp.  122.  Ves.  201;  Stanley  t-.Bernes,  3  Hagg. 

Where  one  has  had  an  actual  Eccl.  374,  437,  Best  on  Pres.  235. 

domicile,     and    departs    from    it  80  Kennedy  v.  Ryall,  67  N.  Y. 

temporarily,   intending  to  return,  386,  affi'g  40  Super.  Ct.  (J.  &  S.) 

it  will  remain  his  legal  domicile  347;    Whart.    Notes   on    Dom.    3 

for  all  purposes.    Erwin  ».  Benton,  So.  L.  Rev.  416,  417. 


NEXT    OF    KIN,    DEVISEES    AND    LEGATEES 


321 


in  the  absence  of  anything  indicating  intent  to  preserve  or 
return  to  that  original  domicile,  is  enough  to  throw  on  the 
other  party  the  burden  of  disproving  intent  to  remain.61  If 
the  person  was  moving  to  and  fro,  the  question  where  he  had 
his  home,6-  where  he  had  established  his  family  if  he  had 
one,63  or  where  his  strongest  domestic  ties  were  fixed,64  may 
determine  in  which  of  the  several  places  he  " lived,"  within 
the  meaning  of  the  rule,65  even  though  he  declared  himself 
a  resident  of  his  place  of  business.66  It  is  the  residence  which 
indicates  the  domicile,  though  but  little  of  his  time  was  spent 
there,  rather  than  the  place  of  business,  though  much  was 
spent  there.67  If  he  maintained  two  domestic  establish- 
ments at  once,  the  relative  length  of  time  spent  in  them  is 
of  little  or  no  weight ; 68  but  any  circumstances,  such  as 
health,  climate,  etc.,  indicating  that  he  probably  regarded 
one  rather  than  the  other  as  likely  to  be  his  ultimate  abode, 
will  control; 69  if,  however,  the  case  is  equally  balanced  in 


81  Ennis  v.  Smith  (Kosciusko's 
Case),  14  How.  (U.  S.)  400,  423. 

62  Story's  Confl.  of  L.,  §41. 

63  Chaine  v.  Wilson,  S  Abb.  Pr. 
78,  s.  c.,  1  Bosw.  673. 

The  presumption  that  a  married 
man's  domicile  is  with  his  wife 
and  family,  may  be  overcome  by 
evidence  showing  the  fact  to  be 
otherwise.  Nolley  v.  Xolley,  122 
Ark.  440.  183  S.  W.  Rep.  954. 

64  See  Catlin  r.  Gladding,  4  Mass. 
C.  C.  308. 

65  See  other  cases  in  2  Abb.  X.  Y. 
Dig.,  2d  ed.,  tit.  Dom.^, 

While  a  man  may  have  many 
residences,  he  can  have  only  one 
domicile.  So,  where  there  is  any 
doubt  as  to  a  domicile,  the  domi- 
cile of  origin  always  reverts, — 
not  so  of  residence.  In  re  Norton, 
159  X.  Y.  Supp.  619,  96  Misc.  152. 

66  Wade  i\  Matheson,  4  Lans.  158. 


Under  Civ.  Code  1895  (Ga.), 
§  1825,  a  person  who  has  no  fixed 
place  of  abode  within  a  county, 
and  is  engaged  in  a  business  which 
causes  a  frequent  change  of  resi- 
dence therein,  may  be  deemed 
temporarily  domiciled  in  that 
county.  Ginn  v.  Cannon,  119  Ga. 
475,  46  S.  E.  Rep.  631. 

*7  Chaine  r.  Wilson  (above). 

The  question  of  residence  is  one 
of  fact,  and  there  is  no  positive 
rule  that  regulates  the  determina- 
tion. Necessarily,  the  conclusion 
must  be  drawn  from  a  considera- 
tion of  all  of  the  circumstances. 
Webster  v.  Kellogg  Co.,  168  App. 
Div.  443,  153  X.  Y.  Supp.  800. 

6S  Greene  r.  Greene,  11  Pick. 
410,  415. 

69  Forbes  v.  Forbes,  Kay,  341. 
Compare  Isham  v.  Gibbons,  1 
Bradf.  69. 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


respect  to  intent,  the  one  first  adopted  as  an  abode  will  main- 
tain its  character  as  his  domicile.  Slight  circumstances  may 
fix  domicile,  if  not  controlled  by  stronger  evidence;  and  as 
the  question  is  usually  between  two  places,  each  indicated 
by  some  -circumstances,  it  often  occurs  that  the  evidence 
of  facts  pointing  to  one  place  would  be  entirely  conclusive 
were  it  not  for  circumstances  of  a  still  more  decisive  char- 
acter which  fix  it  beyond  question  in  the  other.70  In  such 
cases  the  intention  of  the  person  to  consider  the  one  or  the 
other  to  be  his  residence  or  domicile  will  usually  control.71 
Foreign  domicile  may  be  proved  by  evidence  of  foreign  na- 
tional character,  and  of  residence  within  the  foreign  juris- 
diction, although  the  particular  place  may  not  be  satisfac- 
torily ascertained.72 

For  the  purpose  of  actions  treated  in  this  chapter,  a  wife's 
domicile  is  proved  by  proving  that  of  her  husband,  if  sui 
juris,™  unless  they  were  separated  by  the  decree  of  a  com- 


70  Thorndike  v.  City  of  Boston,  1 
Mete.  246;  Mann  v. 'Clark,  33  Vt. 
60. 

71  Opinion  of  the  judges,  5  Mete. 
589.      Source   of   income    (if   not 
parental)    is    not    material.      Id. 
591. 

Actual  residence  is  not  indis- 
pensable to  retain  a  domicile  after 
it  is  once  acquired.  Hayes  v. 
Hayes,  74  111.  312;  Jenks  v.  Rounds, 
87  111.  App.  284. 

The  fact  that  letters  of  adminis- 
tration are  issued  in  one  State  is 
no  adjudication  that  such  State 
was  the  decedent's  last  domicile. 
Thormann  r.  Frame,  176  IT.  S. 
350,  20  Super.  Ct.  446;  44  L. 
ed.  500,  affi'g  102  Wis.  653,  79 
N.  W.  Rep.  39. 

Citizenship  depends  upon  domi- 
cile, and  as  domicile  and  residence 
are  two  different  things,  citizen- 


ship is  never  determined  by  resi- 
dence. Collins  v.  Ashland,  112 
Fed.  Rep.  175. 

The  question  of  domicile  is  a 
mixed  question  of  law  and  fact; 
in  so  far  as  it  is  a  question  of  fact 
it  is  solely  for  the  jury.  Forlaw  v. 
Augusta  Naval  Stores  Co.,  124 
Ga.  261,  52  S.  E.  Rep.  898. 

In  determining  the  issue  of 
domicile,  the  party's  own  expressed 
intention  cannot  have  a  controlling 
effect.  Where  there  is  a  conflict 
between  his  intention  as  expressed 
and  as  exhibited  by  his  conduct, 
the  latter  will  usually  control. 
Ashland  P.  Catlettsburg,  172  Ky. 
365, 189  S.  W.  Rep.  454. 

72  See   Matter   of   Fitzgerald,   2 
Cai.  318. 

73  Whart.  Confl.  of  L.,  §  44. 
The  domicile  of  the  husband  is 

presumptively    that   of    the    wife. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


323 


petent  court.74  The  domicile  of  a  legitimate  minor  is  proved 
by  proving  the  domicile  of  the  father,75  while  he  was  living; 
after  his  death,  that  of  the  mother;  but  it  does  not  follow 
any  change  in  her  domicile  resulting  on  her  remarriage.76 
That  of  an  illegitimate  minor  is  proved  by  proving  the  dom- 
icile for  the  time  being  of  its  mother.77  That  of  a  foundling, 
by  showing  where  it  was  discovered,  or  the  place  of  education 
or  adoption  to  which  it  was  removed.78  In  case  of  a  con- 
tinued absentee,  under  constraint,  like  a  soldier  or  sailor,  the 
residence  of  his  wife  at  the  place  where  he  established  her  is 
prima  fade  evidence  of  his  domcile; 79  or,  if  single,  the  place 


Barber  v.  Barber,  151  N.  Y.  Supp. 
1064,  89  Misc.  519. 

The  domicile  of  the  husband  is 
presumed  to  be  the  domicile  of  the 
wife.  He  may  choose  any  reason- 
able place  or  mode  of  living  and  the 
wife  must  conform  thereto.  State 
v.  Flower,  27  Idaho,  223,  147  Pac. 
Rep.  786. 

74  Id.;  Greene,  10  Pick.  415;  and 
see  Yelverton  v.  Yelverton,  1  Sw. 
&  Tr.  574,  585;  Parsons  v.  City  of 
Bangor,  61  Me.  461,  APPLETON,  J. 

Where  the  domicile  of  matri- 
mony is  in  a  certain  place,  and  the 
husband  abandons  the  wife,  the 
domicile  of  the  latter  continues  in 
that  place  until  a  new  domicile  has 
been  acquired  by  her  elsewhere. 
Hibbert  v.  Hibbert,  72  N.  J.  Eq. 
778,  65  Atl.  Rep.  1028. 

A  minor  who  lives  with  his 
father  until  he  reaches  his  ma- 
jority, and  thereafter  wanders  with- 
out a  fixed  abode,  will  be  regarded  as 
domiciled  at  his  father's  residence 
in  the  absence  of  change  or  inten- 
tion to  change.  Rexroth  v.  Schein, 
206  111.  80,  69  N.  E.  Rep.  240. 

The  general  rule  is  that  in  the 


absence  of  a  decree  of  separation 
or  divorce,  the  legal  domicile  of  a 
wife  follows  that  of  her  husband. 
The  mere  fact  of  their  living  apart 
does  not  affect  the  question.  Whit- 
ing v.  Shipley,  127  Md.  113,  96 
Atl.  Rep.  285. 

75Ludlam  v.  Ludlam,  26  N.  Y. 
356,  371;  Guier  v.  O'Donnell,  1 
Binn.  352,  n.;  Forbes  v.  Forbes, 
Kay,  353. 

The  domicile  of  the  father  es- 
tablishes the  domicile  of  his  minor 
children.  Upon  the  death  of  the 
father,  the  domicile  of  the  mother 
fixes  that  of  the  children.  In  re 
McCoun,  96  Kan.  314,  150  Pac. 
Rep.  516. 

76  Brown  v.  Lynch,  2  Bradf.  214; 
and  see  Ryall  v.  Kennedy,  40  N.  Y. 
Super,  Ct.  (J.  &  S.)  347  (aff'd  in 
67  N.  Y.  386),  and  cases  cited. 

77  Whart.  Confl.  of  L.,  §  37. 
••  Id.,  §  39. 

79  Brewer  v.  Linnaeus,  36  Me.  428. 
But  compare  Ford  v.  Hart,  L.  R.  9 
C.  P.  273,  s.  c.,  9  Moak's  Eng.  400; 
Yelverton  v.  Yelverton,  1  Sw.  & 
Tr.  574. 

A  soldier  who  marries  while  en- 


324 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


where  he  most  usually  resorted  for  board  in  the  intervals  of 
his  return.80 

55.  Change  of  Domicile. 

Domicile  once  shown,  whether  it  be  the  original  or  an 
acquired  one,81  is  presumed  by  the  law  to  have  continued 


listed  and  maintains  an  apart- 
ment for  himself  and  wife  near  the 
post  where  he  is  stationed,  does 
not  thereby  acquire  a  domicile. 
Ex  parte  White,  228  Fed.  Rep.  88. 

80  So  held  of  the  residence  of  a 
fisherman   living   in   his   boat    at 
sea.      Boothbay    v.    Wiscasset,    3 
Greenl.  (Me.)  354. 

Where  the  statute  undertakes 
to  fix  a  residence  at  all,  it  makes 
the  criterion  where  the  party 
sleeps,  and  not  where  he  takes  his 
meals.  Paul  v.  State,  49  Tex.  Cr. 
20,  90  S.  W.  Rep.  171. 

81  Opinion  of  the  judges,  9  Mete. 
687,  589. 

A  domicile  once  gained  remains 
until  a  new  one  is  acquired.  A 
man  cannot  have  two  domiciles  at 
the  same  time.  In  re  Titterington, 
130  Iowa,  356, 106  N.  W.  Rep.  761. 

A  domicile  once  established  will 
continue  until  both  residence  in 
a  new  locality  and  intent  to  make 
the  latter  the  domicile  concur. 
Green  v.  Simon,  17  Ind.  App.  360, 
46  N.  E.  Rep.  693;  Schmoll  v. 
Schenck,  40  Ind.  App.  .581,  82 
N.  E.  Rep.  805;  McCollem  r. 
White,  23  Ind.  43;  Borland  e. 
Boston,  132  Mass.  89,  42  Am.  St. 
Rep.  424;  Viles  v.  Waltham,  157 
Mass.  542,  32  X.  E.  Rep.  901,  34 
Am.  St.  Rep.  311;  People  v.  Moir, 
207  111.  180,  69  X.  E.  Rep.  905, 


99  Am.  St.  Rep.  205;  Price  c. 
Price,  156  Pa,  617,  27  Atl.  Rep. 
291;  Plant  v.  Harrison,  36  N.  Y. 
Misc.  649,  74  N.  Y.  Supp.  411; 
Udny  v.  Udny,  L.  R.  1  H.  L.  Sc. 
441;  Desmare  v.  United  States, 
93  U.  S.  605,  23  L.  ed.  959. 

Mere  intention  to  change  one's 
domicile  without  proof  of  other 
facts,  such  as  residence  in  the  new 
place,  with  which  such  intention 
can  be  connected,  is  not  enough. 
Palmer  v.  Hampden,  182  Mass. 
511,  65  N.  E.  Rep.  817. 

On  a  change  of  domicile  from 
one  State  to  another,  citizenship 
may  depend  upon  the  intention  of 
the  individual,  but  this  intention 
may  be  shown  more  satisfactorily 
by  acts  than  declarations.  An  exer- 
cise of  the  right  of  suffrage  is  con- 
clusive on  the  subject.  Collins  v. 
Ashland,  112  Fed.  Rep.  175. 

A  once  established  domicile, 
either  of  origin  or  of  choice,  is 
presumed  to  be  permanent,  in  the 
absence  of  proofs  to  the  contrary. 
Matter  of  Morgan,  159  X.  Y.  Supp. 
105,  95  Misc.  451. 

Domicile  once  acquired  is  not 
forfeited  by  absence  on  business 
of  the  State  or  of  the  United  States. 
Stevens  ».  Allen,  139  La.  658,  71 
So.  Rep.  936,  L.  R.  A.  1916,  E. 
1115. 

The  law  does  not  recognize  the 


NEXT    OF    KIN,    DEVISEES    ANF    LEGATEES 


325 


until  a  new  domicile  is  shown  to  be  acquired.  Merely 
abandoning  the  old  abode,  though  without  intent  to  return, 
does  not  divest  the  domicile.82  The  burden  is  on  him  who 
alleges  a  change  of  domicile  to  prove  the  change.83  To  con- 
stitute the  new  domicile  two  things  are  indispensable:  1,  res- 
idence in  the  new  locality; 84  and,  2,  the  intention  to  remain 


possibility  of  a  man's  being  without 
a  domicile.  Having  once  had  a 
domicile,  unless  he  has  gained* a 
new  one  elsewhere,  he  retains  the 
domicile  of  origin.  Matter  of 
Rooney,  172  App.  Div.  274,  159 
N.  Y.  Supp.  132. 

82Somerville  v.  Sommerville,  5 
Ves.  756,  787;  Jennison  v.  Hap- 
good,  10  Pick.  77;  First  Nat'l 
Bank  v.  Balcom,  35  Conn.  537; 
Mitchell  v.  U.  S.,  21  'Wall.  350. 
Unless  it  be  in  a  foreign  jurisdic- 
tion; The  Venus,  8  Cranch,  253; 
or  the  intent  be  to  resume  domicile 
of  birth.  Reed's  Appeal,  71  Penn. 
St.  381,  383.  The  better  opinion 
is  that  the  principle  that  original 
domicile  easily  reverts,  is  practi- 
cally confined  to  cases  where  the 
national  character  and  the  origi- 
nal domicile  are  the  same,  and 
does  not  apply  where  both  domiciles 
are  under  one  national  sovereignty. 
First  Nat.  Bank  v.  Balcom,  35 
Conn.  357.  Compare  Mann  r. 
Clark,  33  Vt.  55,  61.  The  inten- 
tion to  abandon,  though  formed 
after  leaving,  effects  abandonment. 
Hampden  v.  Levant,  59  Me.  559, 
APPLETOX,  J. 

Before  the  law  will  artificially 
establish  the  place  of  birth  as  a 
domicile,  based  upon  the  abandon- 
ment of  the  last  domicile  without 
the  intentional  adoption  of  a  new 


one,  the  evidence  should  clearly 
establish  the  facts  on  which  the 
unusual  presumption  is  based. 
Hibbert  v.  Hibbert,  72  N.  J.  Eq. 
778,  65  Atl.  1028. 

83  Crookenden  v.  Fuller,  1  Sw.  & 
Tr.  441;  Hodgson  v.  De  Buchesne, 
12  Moore's  P.  C.  288;  Mitchell  v. 
U.  S.  (above);  Desmare  v.  U.  S., 
93  U.  S.  (3  Otto)  605;  People  v. 
Winston,  25  Misc.  (X.  Y.)  676. 

The  burden  of  proof  is  upon  the 
party  who  asserts  the  change. 
Caldwell  v.  Pollak,  91  Ala.  353, 
S  So.  Rep.  546;  Wanzer  Lamp  Co. 
v.  Woods,  13  Ont.  Pr.  R.  511; 
Pickering  P.  Winch,  48  Ore.  500, 
87  Pac.  Rep.  763,  9  L.  R.  A.  N.  S. 
1159;  Eisele  v.  Oddie,  128  Fed.  Rep. 
941. 

A  residence  once  acquired  is 
presumed  to  continue  until  an- 
other one  is  acquired,  and  the 
burden  of  proof  is  upon  the  person 
who  has  made  the  change  to  show 
it  and  the  acquisition  of  the  new 
residence.  Cover  v.  Hatten,  136 
Iowa,  63,  113  N.  W.  Rep.  470. 

84  There     are,     however,    cases 
where  the  establishment  of  a  home 
or  wife  at  a  place,  with  intent  to 
go  and  abide  there  permanently, 
have  been  held  to  fix  the  domicile 
there  before  actual  residence  com- 
menced.    Bangs  r.  Brewster,  111 
Mass.   382;   and   see   Peterson   v. 


326 


ACTIONS   BY   AND   AGAINST   HEIRS    AND 


there,  either  permanently  or  for  an  indefinite  time.85    The 
change  cannot  be  made  except  facto  et  animo.    Both  are  alike 


Chemical  Bk.,  32  N.  Y.  21,  23, 
affi'g  2  Robt.  605.  Being  in  ilinere 
to  the  intended  new  domicile  may 
be  enough.  Forbes  v.  Forbes,  Kay, 
341.  But  mere  intention  to  change 
is  not  enough.  Guier  v.  O'Donnell, 
1  Binn.  352,  note.  If  it  sufficiently 
appears  that  the  necessary  intent 
to  remain  existed,  the  right  of 
domicile  is  acquired  by  ever  so 
brief  a  residence.  The  Venus,  8 
Cranch,  253,  279.  But  the  force 
of  residence  as  evidence  of  domicile 
is  increased  by  the  length  of  time 
during  which  it  has  continued. 
Stanley  v.  Bernes,  2  Hagg.  Ecc. 
437.  Under  what  circumstances 
"locating"  with  intent  to  return 
for  family,  effects  a  change  before 
they  are  brought,  compare  Burn- 
ham  v.  Rangeley,  1  Woodb.  & 
M.  7;  State  v.  Hallett,  8  Ala. 
159;  Smith  r.  Groom,  7  Fla.  81, 
158. 

The  mere  intention  to  acquire  a 
new  domicile,  unaccompanied  by 
an  actual  removal,  avails  nothing; 
neither  does  the  fact  of  removal, 
without  the  intention,  avail.  The 
factum  et  animus  must  both  exist 
together.  Smith  v.  Groom,  7  Fla. 
81;  Beekman  v.  Beekman,  53 
Fla.  858, 43  So.  923. 

To  constitute  a  change  of  domi- 
cile three  things  are  essential:  (1) 
actual  residence  in  the  other  or 
new  place;  (2)  an  intention  to 
abandon  the  old  domicile;  and  (3) 
an  intention  of  acquiring  a  new 
one  at  the  other  place.  Denny 
v.  Sumner  County,  134  Tenn.  468, 


184  S.  W.  Rep.  14,  L.  R.  A.  1917 
A.  285. 

86  Jennison  v.  Hapgood,  10  Pick. 
77.  As  to  intent  to  return  in  the 
indefinite  future,  see  Bruce,  2  Bos. 
&  P.  230,  n.;  Ross  v.  Ross,  103 
Mass.  575. 

A  change  in  the  domicile  of  a 
person  cannot  be  effected  by  an 
intention  in  the  mind  to  make  this 
change,  unless  it  is  accompanied 
by  an  actual  change  in  the  place 
of  abode.  Pickering  v.  Cambridge, 
144  Mass.  244,  10  N.  E.  Rep.  827; 
Foss  v.  Foss,  58  X.  H.  283; 
Murphy  v.  Hunt,  75  Ala.  438. 
A  change  of  domicile  is  consum- 
mated when  one  leaves  the  State 
where  he  has  hitherto  resided, 
avowing  his  intention  not  to  re- 
turn, and  enters  another  State 
intending  to  settle  there  perma- 
nently. Pyle  v.  Brenneman,  122 
Fed.  Rep.  788,  60  Cir.  Ct.  App. 
409;  Bradley  v.  Lowry,  17  S.  C. 
Eq.  1,  39  Am.  Dec.  142;  Stevens 
v.  Larwill,  110  Mo.  App.  140,  84 
S.  W.  Rep.  113. 

Whether  a  change  of  residence 
was  effected  in  any  case  depends 
upon  the  intention  with  which  the 
removal  from  the  former  domicile 
was  made.  Hall  v.  Schoenecke, 
128  Mo.  661,  31  S.  W.  Rep.  97. 

There  must  be  both  residence 
in  the  alleged  adopted  domicile 
and  intention  to  adopt  such  place 
of  residence  as  the  sole  domicile,  in 
order  to  effect  a  change  of  domicile. 
Dupuy  r.  Wurtz,  53  N.  Y.  556. 

Going    into    another    State    to 


NEXT    OF    KIN,    DEVISEES    AND    LEGATEES 


327 


necessary.  Either  without  the  other  is  insufficient.  Mere 
absence  from  a  fixed  home,  however  long  continued,  cannot 
work  the  change.  But  the  fact  of  fixing  a  residence  in  an- 


transact  some  business  with  the 
intention  to  return  does  not  change 
one's  domicile.  Home  r.  McRae, 
53  S.  C.  51,  30  S.  E.  Rep.  701. 

A  change  of  domicile  is  accom- 
plished by  a  change  of  residence  to 
a  new  place,  combined  with  the 
animus  manendi.  Marks  v.  Ger- 
mania  Savings  Bk.,  110  La.  659, 
34  So.  Rep.  725. 

A  farmer  who  moves  his  family 
and  party  of  his  household  to  a  new 
locality  in  order  that  his  children 
may  have  the  advantage  of  the 
schools  there,  but  retains  his  old 
home  and  continues  to  work  the 
farm,  and  intends  to  bring  his  fam- 
ily back  after  the}-  are  through 
schooling,  does  not  change  his 
domicile.  Montgomery  r.  City  of 
Lebanon,  111  Ky.  646,  64  S.  W. 
Rep.  509,  23  Ky.  Law  Rep.  891,  54 
L.  R.  A.  914. 

Fact  and  intent  must  concur  in 
order  that  one  may  gain  a  residence  , 
or  domicile  in  another  jurisdiction 
from  that  of  his  original  domicile. 
Shirk  v.  Monmouth  Township 
Board,  137  Iowa,  230,  114  X.  W. 
Rep.  884. 

One  who  goes  to  another  place 
for  the  temporary  purpose  of  get- 
ting medical  care  and  treatment 
and  not  with  the  intention  of  mak- 
ing the  new  place  his  permanent 
future  residence,  does  not  change 
his  domicile.  People  r.  Moirs, 
207  111.  180,  69  X.  E.  Rep.  905,  99 
Am.  St.  Rep.  20o. 

A  change  of  domicile  is  consum- 


mated when  one  leaves  the  State 
where  he  has  hitherto  resided, 
avowing  his  intention  not  to  re- 
turn, and  enters  another  State  in- 
tending to  permanently  settle  there. 
Pyle  v.  Brenneman,  122  Fed.  Rep. 
788,  60  Cir.  Ct.  App.  409;  Bradley 
v.  Lowry,  17  S.  C.  Eq.  1,  39  Am. 
Dec.  142;  Stevens  v.  Larwill,  110 
Mo.  App.  140,  84  S.  W.  Rep.  113. 

If  a  person  has  actually  removed 
to  another  place  with  an  intention 
of  remaining  there  for  an  indefinite 
time,  and  as  a  place  of  fixed  pres- 
ent domicile,  it  is  to  be  deemed 
his  place  of  domicile  notwithstand- 
ing he  may  entertain  a  floating  in- 
tention to  return  at  some  future 
period.  Gilbert  v.  David,  235  U. 
S.  561,  35  S.  C.  164,  59  L.  ed.  360 
(quoting  Story  on  Conflict  of  Laws, 
7th  ed.,  §  46,  page  41).  See  also 
Baker  v.  Baker,  162  Ky.  683,  173 
S.  E.  Rep.  109,  L.  R.  A.  1917  C. 
171;  Saunders  v.  City  of  Flemings- 
burg,  163  Ky.  680,  174  S.  W.  Rep. 
51. 

To  enable  one  to  change  his  dom- 
icile or  acquire  a  new  one,  there 
must  be  (1)  freedom  of  choice;  (2) 
bodily  presence  in  the  chosen  lo- 
cality; (3)  an  intention  to  remain 
there  permanently.  But  an  insane 
person  is  incapable  of  exercising 
either  choice  or  intention  and  can- 
not legally  change  his  domicile. 
He  will  retain  the  domicile  he  pos- 
sessed before  he  became  insane. 
Sumrall  v.  Com.,  162  Ky.  658,  172 
S.  W.  Rep.  1057. 


328 


ACTIONS   BY   AND    AGAINST   HEIRS    AND 


other  place,  from  motives  of  health  or  business  of  a  per- 
manent nature,  may  raise  a  legal  presumption  of  intent  to 
make  the  change.86  On  the  other  hand,  the  intent  to  change 
will  not  be  presumed  if  it  would  have  been  illegal.87 

The  domicile  of  a  minor  cannot  be  changed  by  its  own 
act ; 88  but  an  actual  change  of  residence  by  the  guardian  with 
the  ward,  made  in  good  faith,  may  have  the  effect  to  change 
the  ward's  domicile.89  If  a  minor,  on  coming  of  age,  leaves 


»sElbers  v.  U.  S.  Ins.  Co.,  16 
Johns.  128. 

Where  a  person  leaves  his  dom- 
icile and  definitely  abandons  the 
hope  or  expectation  of  returning 
to  it  as  his  home,  and  continues  a 
wanderer  with  no  new  domicile 
adopted  by  him  either  in  fact  or 
intent,  then  his  domicile  of  ori- 
gin— his  birthplace — might  become 
his  legal  domicile.  Hibbert  r. 
Hibbert,  72  N.  J.  Eq.  778,  65  Atl. 
Rep.  102*8. 

The  fact  that  an  invalid  is  not 
able  to  return  to  his  place  of  res- 
idence for  a  long  time  does  not  per 
se  negative  an  established  domicile 
of  origin  and  choice.  Matter  of 
Kane,  156  N.  Y.  Supp.  1004,  93 
Misc.  406. 

Although  a  party  may  abandon 
his  domicile,  it  will  still  remain  his 
legal  residence  until  he  takes  up  an 
actual  residence  elsewhere.  In 
determining  whether  or  not  a  new 
domicile  has  been  acquired  both 
the  fact  and  the  intent  must  be 
present.  A  removal  which  does 
not  contemplate  an  absence  from 
the  former  domicile  for  an  indefi- 
nite and  uncertain  time  does  not 
constitute  a  change.  Saunders  ?>.  / 
Flemingsberg,  163  Ky.  680,  174 
S.  W.  Rep.  51. 


87  Mitchell  v.  U.  S.  (above). 

88  Forbes  r.   Forbes,   Kay,   353. 
It  seems  not  even  after  emancipa- 
tion.    Trammell  r.  Trammell,  20 
Tex.  406,  417. 

The  last  domicile  of  the  deceased 
father  fixes  that  place  as  the  dom- 
icile of  the  son  until  he  reaches  his 
majority,  unless  it  can  be  shown 
that  the  mother  lives  elsewhere 
since  the  death  of  the  father,  in 
which  case  the  son's  domicile  fol- 
lows that  of  the  mother.  Young  v. 
Hiner,  72  Ark.  299,  79  S.  W.  Rep. 
1062. 

Under  the  laws  of  Florida,  the 
domicile  of  the  father  is  the  dom- 
icile of  his  minor  children,  male 
and  female,  until  they  become 
twenty-one  years  of  age,  and  such 
minors  are  incapable  of  making  a 
domicile  in  Florida  unless  the 
father  makes  Florida  his  domicile. 

When  a  female  under  the  age  of 
twenty-one,  whose  father  is  dom- 
iciled in  Ohio,  marries  a  man  dom- 
iciled in  Florida,  she  becomes  a 
resident  of  Florida  as  soon  as  she 
is  married.  Beekman  v.  Beekman, 
53  Fla.  858,  43  So.  Rop.  923. 

•'  Wheeler  r.  Hollis,  19  Tex.  522, 
and  cases  cited;  and  see  Brown  v. 
Lynch,  2  Bradf.  214.  Otherwise, 
if  made  fraudulently  for  the  guard- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


329 


the  parental  domicile,  he  may  acquire  a  domicile,  as  any 
other  person,  by  taking  up  a  residence,90  without  intent  to 
return  otherwise  than  on  visits.  But  if  he  retains  family 
ties,  and  resorts  to  the  old  home  in  vacation,  he  does  not 
lose  his  domicile  there  by  his  absence  and  residence  at  col- 
lege.91 A  wife  after  divorce,  either  absolute  or  by  way  of 
separation,  may  change  her  domicile  by  her  own  act.92  A 


ian's  benefit.  Trammell  v.  Tram- 
mell,  20  Tex.  406.  The  domicile 
of  a  person  non  compos  may  be 
changed,  where  it  does  not  affect 
succession,  by  the  committee  or 
guardian.  Holyoke  r.  Haskins,  5 
Pick.  (Mass.)  20. 

The  domicile  of  an  infant  fol- 
lows that  of  the  father,  notwith- 
standing the  separation  of  the  par- 
ents and  promises  by  the  father  to 
return  the  infant  to  the  mother  at 
her  request.  Lanniug  v.  Gregory 
(Tex.  Civ.  App.),  101  S.  W.  Rep. 
484,  100  Tex.  310,  99  S.  W.  Rep. 
542,  123  Am.  St.  Rep.  809,  10  L. 
R,  A.  (X.  S.)  690. 

The  domicile  of  an  infant  fol- 
lows that  of  the  father,  and  after 
the  latter 's  death,  it  generally  fol- 
lows that  of  the  mother.  Lamar  r. 
Micou,  112  U.  S.  452,  5  Sup.  Ct. 
857,  28  L.  ed.  751 ;  Modern  Wood- 
men of  America  v.  Hester,  66  Kan. 
129,  71  Pac.  Rep.  297;  Boyle  v. 
Griffin,  84  Miss.  41,  36  So.  Rep. 
141;  In  re  Russell,  64  N.  J.  Eq. 
313,  53  Atl.  Rep.  169. 

After  a  decree  of  divorce  giving 
the  mother  the  exclusive  custody 
of  the  infant,  the  domicile  of  the 
latter  follows  that  of  the  mother. 
Fox  v.  Hicks,  81  Minn.  197,  83 
N.  W.  Rep.  538,  50  I..  R,  A.  663. 

The  domicile  of  a  child  of  di- 


vorced parents,  who  has  been 
placed  in  the  custody  of  the  mother, 
follows  that  of  the  mother.  To- 
ledo Traction  Co.  v.  Cameron,  69 
C.  C.  A.  28,  137  Fed.  Rep.  48. 

90  Hart  v.  Lindsey,  17  X.  H.  235. 

91  Granby  v.  Amherst,  7  Mass.  1, 
5.    And  see  Putnam  r.  Johnson,  10 
Mass.  488.     An  intent  to  change 
domicile    is    not    so    readily    pre- 
sumed from  residence  at  a  public 
institution  for  purposes  of  educa- 
tion, as  from  a  like  removal  for 
ordinary  purposes.     Opin.  of  the 
Judges,  5  Mete.  590. 

A  man  must  have  a  habitation 
or  domicile  somewhere  and  he  can 
have  only  one  at  a  time.  In  order 
to  lose  one  he  must  acquire  another, 
but  the  mere  attendance  at  an  in- 
stitution of  learning  for  the  sole 
purpose  of  acquiring  an  education 
is  not  of  itself  sufficient  to  estab- 
lish such  a  status.  Seibold  v.  Wahl, 
164  Wis.  82,  159  X.  W.  Rep.  546, 
Ann.  Cas.  1917,  C.  400. 

"Barber  v.  Barber,  21  How. 
(U.  S.)  582. 

The  domicile  of  a  child  whose 
parents  have  been  divorced  follows 
that  of  the  parent  in  whose  custody 
the  court  has  placed  it.  Toledo 
Traction  Co.  v.  Cameron,  69  C. 
C.  A.  28,  137  Fed.  Rep.  48. 

Where  parents  are  living  separ- 


330 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


soldier  or  sailor  does  not  lose  his  domicile  by  absence  in  ac- 
tual service.93  Naturalization  is  very  strong,  but  perhaps  not 
conclusive  evidence  of  change  of  domicile.94  Where  the  dom- 
iciles of  original  selection  are  both  domestic,  the  presumption 
of  revival  of  intention  to  return  to  the  domicile  of  origin  does 
not  apply.95 


rately  under  a  decree  of  separation, 
the  court  may  order  the  children 
to  be  kept  within  the  State  or 
brought  within  it,  even  after  they 
have  been  placed  in  the  custody 
of  the  mother,  and  she  has  changed 
her  domicile  to  another  State,  and 
taken  the  children  with  her.  Dixon 
v.  Dixon,  72  N.  J.  Eq.  588,  66  Atl. 
Rep.  597. 

A  husband  and  wife  may  have 
separate  domiciles.  Hewitt  v. 
Weatherby,  57  Mo.  276;  Exchange 
Bank  v.  Cooper,  40  Mo.  169. 

A  wife  who  has  been  deserted 
by  her  husband  may  establish  her 
own  independent  domicile.  Dit- 
son  v.  Ditson,  4  R.  I.  87;  Atherton 
0.  Atherton,  181  U.  S.  155,  21  Sup. 
Ct.  Rep.  544,  45  L.  ed.  794. 

A  married  woman  residing  in  a 
sister  State  may  for  cause  acquire 
a  domicile  apart  from  her  husband 
by  removing  to  this  State  with  the 
intention  of  permanently  making 
this  her  home  and  actually  resid- 
ing here.  And  thereafter  she  may 
obtain  a  divorce  from  him.  Shute 
v.  Sargent,  67  X.  H.  305,  36  Atl. 
Rep.  282. 

Where  the  husband  is  guilty  of 
misconduct,  the  wife  must,  to 
avoid  condonation,  establish  a 
separate  domicile  of  her  own.  Dit- 
son v.  Ditson,  4  R.  I.  87. 


91  Brewer  v.  Linnaeus,  36  Me. 
428,  s.  P.,  per  SHAW,  Ch.  J.,  Sears 
v.  City  of  Boston,  1  Mete.  (Mass.) 
250,  252. 

Where  one  whose  domicile  is 
in  a  particular  State,  enters  the 
United  States  Army  and  remains 
in  it  until  his  retirement  after  many 
years  of  continuous  service,  he  re- 
tains the  domicile  of  origin  and  his 
wife  whom  he  marries  in  another 
State  has  no  other  domicile  than  his, 
and  save  for  just  cause  can  acquire 
no  other.  Stevens  v.  Allen,  139  La. 
658,  71  So.  Rep.  936,  L.  R.  A.  1916, 
E. 1115. 

94  See  Moore  v.  Darrall,  4  Hagg. 
53. 

A  naturalized  citizen  who  con- 
tinuously resides  abroad  may  not 
be  a  citizen  of  or  have  a  domicile 
in  any  State.  Stein  v.  Fleischmann 
Co.,  237  Fed.  Rep.  679. 

95  Succession  of   Steers,   47   La. 
Ann.  1551,  18  So.  Rep.  503. 

The  letters  of  a  decedent  refer- 
ring to  his  birthplace  as  his  dom- 
icile and  expressing  his  intention 
to  return  there  and  make  it  his 
home,  and  his  returning  there 
shortly  before  his  death,  and  dying 
there,  all  go  to  prove  that  it  was 
his  domicile.  Thorn  v.  Thorn,  28 
App.  D.  C.  120. 


NEXT    OF    KIX,    DEVISEES    AND    LEGATEES 


331 


66.  The  Intent. 

Usually  the  intent  to  which  the  evidence  is  to  be  directed 
is  not  intent  to  secure  domicile,  as  a  legal  result,  but  to  take 
up  continuous  residence,  as  a  matter  of  fact.  In  some  cases, 
however,  especially  where  two  residences  are  shown,  there 
may  have  been  an  intent  that  one  should  be  made  the  dom- 
icile to  the  exclusion  of  the  other.  Intent  of  either  kind  is 
competent  evidence.  On  the  one  hand  it  is  enough  to  show 
the  residence  as  a  fact,  and  the  intent  to  abide,  without 
showing  that  the  person  had  any  intention  or  even  knowl- 
edge as  to  the  legal  consequence  in  fixing  domicile; 96  on  the 
other  hand,  the  intelligent  intention  to  retain  the  existing 
domicile  as  the  legal  habitat,  while  making  a  change  of  res- 
idence which  it  was  apprehended  might  be  permanent,  may 


M  This  is  the  American  rule.  The 
English  courts  seem  not  agreed. 
In  Moorhouse  v.  Lord,  10  Ho.  of 
L.  282,  285,  292,  it  was  held  (in 
case  of  a  national  change)  that  the 
intent  must  be  intent  to  change 
the  domicile  as  distinguished  from 
the  residence.  In  Douglas  v. 
Douglas,  41  L.  J.  Eq.  74,  88,  this 
was  said  not  to  be  the  English 
law,  and  the  rule  was  laid  down 
that  the  evidence  of  intention  may 
be  either  express,  or  such  as  to  lead 
to  the  inference  that,  if  the  ques- 
tion had  been  formally  submitted 
to  the  party  whose  domicile  is  in 
dispute,  he  would  have  expressed 
his  wish  in  favor  of  a  change;  that 
such  an  intention  must  be  either 
shown  to  have  actually  existed  in 
the  mind,  or  it  must  appear  that 
it  was  reasonably  certain  it  would 
have  been  formed  or  expressed  if 
the  question  had  arisen  in  a  form 
requiring  a  deliberate  and  solemn 
determination.  Id.  89. 


The  mere  intention  to  acquire 
a  new  domicile  without  the  fact 
of  an  actual  removal  avails  noth- 
ing; neither  does  the  fact  of  an 
actual  removal  without  such  in- 
tention. This  intent  is  as  essential 
as  the  fact  of  actual  residence.  A 
mere  change  in  the  place  of  abode, 
though  more  than  temporary,  is 
not  sufficient  unless  the  intent  con- 
cur. Denny  v.  Sumner  County, 
134  Tenn.  468,  184  S.  W.  Rep.  14, 
L.  R.  A.  1917,  A.  285. 

Domicile  is  more  than  a  mere 
matter  of  intention.  It  is  a  man's 
permanent  home  as  distinguished 
from  transitory  residences.  A 
person  cannot,  simply  by  chosing 
and  intending  in  good  faith  to 
make  a  certain  place  his  domicile, 
effect  that  result.  The  intent  to 
change  domicile  is  ineffective  un- 
less supported  by  adequate  facts. 
In  re  Sedgwick,  223  Fed.  Rep. 
655. 


332 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


be  effectual  to  prevent  a  change  of  domicile.97    But  where 
the  facts  show  all  the  preponderating  indicia  of  domicile 


97  Dupuy  v.  Wurtz,  53  N.  Y.  556, 
affi'g  64  Barb.  156. 

The  place  where  one  has  estab- 
lished his  home,  and  where  he  is 
habitually  present,  and  to  which, 
when  he  departs,  he  intends  to  re- 
turn, is  his  domicile.  State  r. 
Superior  School  Dist.,  55  Neb.  317, 
75  N.  W.  Rep.  855. 

A  domicile,  once  acquired,  re- 
mains until  a  new  one  is  acquired, 
facto  et  animo.  Simmons'  Succ., 
109  La.  1095, 34  So.  Rep.  101;  Mc- 
Lean v.  Janin,  45  La.  Ann.  664, 
12  So.  Rep.  747;  Ballard  v.  Pules- 
ston,  113  La.  235,  36  So.  Rep. 
951;  Erwin  v.  Benton,  120  Ky. 
.536,  87  S.  W.  Rep.  291,  27  Ky. 
Law  Rep.  909,  9  Ann.  Cas.  264. 

Intention  may  be  proved  by 
acts  and  by  declarations  connected 
with  acts,  but  it  is  not  thus  limited 
when  it  relates  to  mental  attitude, 
or  to  a  subject  governed  by  choice. 
A  person  may  select  and  make  his 
own  domicile  and  no  one  may  let 
or  hinder.  He  may  elect  between 
his  winter  and  summer  residence 
and  make  a  domicile  of  either. 
The  right  to  choose  implies  the 
right  to  declare  one's  choice,  for- 
mally or  informally,  as  he  prefers, 
and  even  for  the  sole  purpose  of 
making  evidence  to  prove  what 
his  choice  was.  Such  declarations 
are  not  self-serving  in  an  improper 
sense,  unless  they  are  made  with 
intent  to  deceive.  If  they  are 
false  and  made  for  a  sinister  pur- 
pose, they  will  meet  the  fate  that 
falsehood  always  meets  in  courts 


of  justice  when  discovered  by  the 
triers  of  fact.  In  re  Newoomb,  192 
N.  Y.  238,  84  N.  E.  Rep.  950, 
aff'd,  122  App.  Div.  920,  107  X. 
Y.  Supp.  1139. 

Temporary  absence  from  the 
State  of  one  domiciled  there  will 
not  change  the  residence,  unless  to 
the  factum  of  residence  elsewhere 
be  added  the  animus  mamndi. 
Watkinson  v.  Watkinson,  68  N.  J. 
Eq.  632,  60  Atl.  Rep.  931,  69  L.  R. 
A.  397,  6  Ann.  Cas.  326,  rev'd  67 
N.  J.  Eq.  142,  58  Atl.  Rep.  384. 

Without  an  intention  to  change, 
one  who  goes  to  another  State  to 
do  business  and  establishes  a  per- 
manent business  office  there  does 
not  change  his  domicile.  State  v. 
Snyder,  182  Mo.  462,  82  S.  W. 
Rep.  12. 

One  who  changes  his  residence 
solely  for  the  purpose  of  fulfilling 
a  business  contract,  with  no  inten- 
tion of  remaining  permanently  in 
the  new  place,  does  not  change 
his  domicile.  Knight  v.  Bond,  112 
Ga.  828,  38  S.  E.  Rep.  206. 

A  man  who  moves  his  family  to 
rented  quarters  in  another  county 
in  order  that  his  children  may  at- 
tend school  does  not  change  his 
domicile.  Peacock  v.  Collins,  110 
Ga.  281,  34  S.  E.  Rep.  611. 

The  fact  that  a  person  lived  at 
various  hotels  in  a  city  instead  of 
at  a  private  dwelling  house  or  an 
apartment,  did  not  preclude  him 
from  regarding  that  city  as  his 
home,  and  where  he  became  the 
owner  of  a  house  in  another  State 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


333 


in  one  of  two  residences,  the  mere  election  of  the  person  to 
have  the  other  considered  as  the  domicile  cannot  suffice.98 


57.  Evidence  of  Residence  and  of  Intent. 

A  witness  may  testify  to  the  fact  of  a  person's  residence; 
and  even  negatively,  by  showing  that  the  witness  had  ad- 
equate acquaintance  with  the  place,  and  that  the  person 
could  not,  in  his  opinion,  have  lived  there  without  the  wit- 
ness' knowing  it."  A  person,  whether  a  party  to  the  suit  or 


and  went  there  on  several  occa- 
sions, afterwards  stating  that  he 
intended  to  make  it  his  home,  but 
never  subsequently  visiting  it,  he 
did  not  acquire  a  domicile  in  such 
State.  Matter  of  Rutherford,  88 
Misc.  414,  150  N.  Y.  Supp.  734. 

98  Oilman  v.  Gilman,  52  Me.  165; 
Holmes  v.  Greene,  7  Gray,  299, 
301;  Butler  t>.  Farnsworth,  4  Wash. 
C.  Ct.  101. 

Although  the  plaintiff  had  not 
made  up  her  mind  definitely  one 
way  or  the  other  as  to  her  future 
abode,  she  came  from  Connecticut 
to  Xew  York,  because  she  thought 
she  might  earn  a  better  living  in 
New  York,  and  also  because  she 
wanted  to  bring  this  suit  in  New 
York.  She  came  to  New  York 
with  the  intention  of  staying  in 
New  York,  and  it  would  have  been 
error  to  dismiss  the  complaint  on 
the  ground  of  non-residence. 
Bump  v.  N.  Y.,  New  Haven,  etc., 
R.  R.  Co.,  38  N.  Y.  App.  Div.  60, 
55  N.  Y.  Supp.  962,  aff'd  in  165 
N.  Y.  636,  59  N.  E.  Rep.  1119. 

A  man  cannot  have  two  legal 
residences  at  the  same  time,  and, 
for  the  purpose  of  voting,  he  can- 
not have  a  domiciliarv  residence 


separate  and  apart  from  the  home 
which  he  provides  for  his  family 
and  which  he  habitually  uses  as 
his  own  habitation  with  no  inten- 
tion of  departing  therefrom  except 
for  temporary  purposes.  He  can- 
not actually  live  in  one  locality  for 
the  sake  of  the  comfort,  conven- 
ience and  social  standing  of  his 
family  and  maintain  a  wholly  dis- 
tinct political  residence  in  another 
place.  Matter  of  Rooney,  172  App. 
Div.  274,  159  N.  Y.  Supp.  132. 

99  Cavendish  v.  Troy,  41  Vt.  108. 
It  was  also  held  that  to  prove  his 
presence,  ancient  documents  of 
other  persons,  showing  his  business 
and  litigation  there,  were  compe- 
tent. 

The  testimony  of  the  plaintiff 
that  the  defendant  owed  her  monejr 
for  board  and  lodging,  that  at  the 
time  he  left  her  house,  taking  all 
his  clothes,  and  saying  that  he  ex- 
pected to  leave  town  and  accept 
a  position  on  a  railroad  in  the  West, 
and  that  she  has  not  seen  him 
since,  is  sufficient  to  support  a 
finding  that  the  defendant  is  a  non- 
resident. Kelson  v.  Detroit,  etc., 
Ry.  Co.,  146  Mich.  563,  109  X. 
W.  Rep.  1057,  10  Ann.  Cas.  500. 


334 


ACTIONS    BY    AND    AGAINST    HEIRS    AND 


not,  may  testify  what  was  his  own  intent  hi  taking  up  his 
residence  or  removing,1  but  against  his  testimony  all  material 
circumstances  may  be  weighed.2 

Evidence  of  declarations  manifesting  intent,  made  by  the 
person  before  suit,  and  accompanying  the  residence  or  the 
acts  of  change,  is  competent,  whether  the  person  is  living  3 


1  Fisk  v.  Chester,  8  Gray  (Mass.), 
50;  Hulett  v.  Hulett,  37  Vt.  581, 
586;    Cushing    v.    Friendship,    89 
Me.    525,    530,     36    All.     Rep. 
1001. 

Intention  may  be  proved  by 
one's  own  declarations.  In  re 
Newman,  124  Cal.  688,  57  Pac. 
Rep.  686,  45  L.  R.  A.  780. 

The  testimony  of  the  person 
whose  domicile  is  in  question  will 
be  controlling,  unless  negatived  by 
his  acts  or  declarations  proven  in 
the  case.  Collins  v.  Ashland,  112 
Fed.  Rep.  175. 

The  declarations  of  witnesses  as 
to  a  certain  town  being  their  home 
are  not  proper  evidence  to  prove 
their  residence.  Griffin  v.  Wall, 
32  Ala.  149;  Ham  v.  State,  156  Ala. 
645,  47  So.  Rep.  126. 

2  Wilson  v.  Wilson,  L.  R.  2  P.  & 
D.  435,  444,  s.  c.,  4  Moak's  Eng. 
663,  671. 

One  does  not  lose  his  status  as 
an  actual  bona  fide  resident  of  a 
place,  either  because  he  finds  it 
necessary  to  establish  his  family 
elsewhere,  or  does  not  in  the  ab- 
sence of  his  family  maintain  a  do- 
mestic establishment  in  such  place. 
The  question  is  one  largely  of  in- 
tention, and  the  intention  of  a 
person,  in  that  respect,  is  deter- 
mined by  his  expressions  thereof, 
at  times  not  suspicious,  and  his 


testimony  considered  in  connec- 
tion with  his  conduct  and  the 
circumstances  of  his  life.  Caufield 
v.  Cravens,  138  La.  283,  70  So. 
Rep.  226. 

A  person's  own  testimony  or  de- 
clared intention  as  to  domicile 
cannot  have  a  controlling  effect. 
Where  there  is  a  conflict  between 
a  person's  intention  and  his  con- 
duct, his  conduct  will  control. 
Saunders  v.  Flemingsburg,  163  Ky. 
680,  174  S.  W.  Rep.  51. 

3  Kilburn  v.  Bennett,  3  Mete, 
(Mass.)  199;  Burgess  v.  Clark,  3 
Ind.  250. 

The  question  of  a  person's  place 
of  residence  depends  upon  his  in- 
tention, as  evidenced  by  his  acts 
and  declarations.  Barfield  P. 
Coker,  73  S.  C.  181,  53  S.  E.  Rep. 
170. 

Declarations  of  intention  not 
made  in  connection  with  the  doing 
of  any  act,  may  be  received  in  evi- 
dence on  the  question  of  domicile, 
on  the  ground  that  intention  as  to 
residence  is  an  independent  fact,  in 
itself  material  to  the  issue  and 
provable  as  such.  If  not  treated  as 
a  part  of  the  res  gestoe  of  an  existing 
status,  the  admission  of  such  dec- 
laration is  justified.  Wilbur  v. 
Town  of  Calais,  90  Vt,  335,  98 
Atl.  Rep.  913. 


NEXT   OF    KIN,    DEVISEES    AND    LEGATEES 


335 


or  not  4  at  the  time  of  trial,  if  the  intent  related  to  the  pres- 
ent or  future,5  but  declarations  of  the  intent  of  a  former  res- 
idence or  removal  are  not  competent.6 

A  written  declaration,  although  more  reliable  than  mere 
words  in  point  of  preservation,  may  or  may  not  be  more 
significant  of  intent  in  proportion  as  it  is  spontaneous  and 
deliberate.7  Thus,  an  averment  in  pleading,8  or  a  description 
in  a  will,9  deed  or  contract,10  being  formal  acts  drawn  usually 


4  Brodie  v.  Brodie,  2  Sw.  &  Tr. 
259,  262;  Ennis  v.  Smith,  14  How. 
(U.  S.)  400,  421. 

To  constitute  domicile,  two 
things  must  concur — residence  and 
intention  to  make  it  the  home  of 
the  party.  The  declarations  of  a 
deceased  in  respect  to  his  home 
and  his  intention  to  return  to  it  out- 
weigh the  fact  of  voting  in  a  pri- 
mary, or  being  candidate  for  an 
office,  as  indicating  his  real  pur- 
pose. Hascall  r.  Hafford,  107  Tenn. 
355,  65  S.  W.  Rep.  423,  89  Am. 
St.  Rep.  952. 

5  A  letter  written  a  year  after 
leaving,  and  expressing  intent  never 
to  return,   Avith  business  instruc- 
tions based  on  it,  is  competent  on 
the  question  of  previous  change. 
Thorndike   v.    City   of   Boston,    1 
Mete.  242,  247. 

6  Salem  v.  Lynn,  13  Mete.  544. 
But  this  limit  is  not  to  be  too 
strictly  applied.     In  depends  per- 
haps on  the  existence  of  interest. 
See  also    Crookenden  v.  Fuller,  1 
Sw.  &  Tr.  450.    Declarations  of  a 
person  accompanying  a  change  of 
his   abiding   place   are   competent 
to   explain  the  change  as  part  of 
the  res  gestce.    They  are  also  often 
admissible    as    evidence    on    the 
broader  ground  that  they  tend  to 


show  his  intention  to  make  the 
change.  If  they  indicate  the  state 
of  mind  of  the  declarant,  they  have 
a  legitimate  tendency  to  show  his 
intention.  Viles  v.  City  of  Wal- 
tharn,  157  Mass.  542,  34  Am.  St. 
Rep.  311, 32  N.  E.  Rep.  901. 

7  See  Dupuy  v.  Wurtz,  53  N.  Y. 
556,  561,  affi'g  64  Barb.  156. 

8  Hegeman  v.  Fox,  31  Barb.  475, 
478. 

9  Oilman  v.  Oilman,  52  Me.  165. 
Compare  Ennis  v.  Smith,  14  How. 
(U.  S.)  400,  421. 

Where  a  man  born  in  a  certain 
place  had  resided  there  continu- 
ously for  eighty-five  years  and, 
when  his  condition  was  apparently 
impaired  both  physically  and  men- 
tally, had  married  and  gone  to  his 
wife's  home  in  another  State  where 
he  afterwards  made  a  will  in  which 
he  was  described  as  of  the  latter 
place,  it  was  held  that  he  had  not 
then  that  degree  of  mental  strength 
and  capacity  to  form  and  carry 
out  a  purpose  to  change  his  domi- 
cile. Matter  of  Horton,  175 
App.  Div.  447,  161  N.  Y.  Supp. 
1071. 

10  Lougee  v.  Washburn,  16  N.  H. 
134.     A  declaration  of   residence, 
in  a  conveyance,  is  not  conclusive, 
unless  the  domicile  is  one  of  the 


336 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


by  another;  or  an  entry  in  a  hotel  register,11  being  usually 
a  careless  act, — though  each  competent,  are  entitled  to  little 
weight. 

Acts  are  usually  more  cogent  evidence  of  intent  than  dec- 
larations.12   The  law,  in  the  absence  of  direct  evidence  of  in- 


causes  of  the  contract.  Tillman 
v.  Mosely,  14  La.  Ann.  Rep.  721. 

11  Oilman^.  Oilman  (above). 
Where  one,  who  travels  a  great 

deal  for  several  years,  repeatedly 
registers  his  name  at  hotels  as  of 
New  York  it  is  impossible  to  avoid 
the  conclusion  that  his  fixed  in- 
tention was  to  make  New  York 
his  domicile.  Marks  v.  Germania 
Savings  Bk.,  110  La.  659,  34  So. 
Rep.  725. 

Evidence  that  a  person  signed 
his  name  in  an  hotel  register  as 
being  from  a  certain  city,  is  ad- 
missible on  the  question  of  his 
domicile.  Matter  of  Rutherford, 
88  Misc.  414,  150  N.  Y.  Supp.  734. 

12  Dupuy  v.  Wurtz  (above).    The 
"intent  is  manifested  by  what  he 
does,  and  by  what  he  says  when 
doing,  •  and   sometimes   as   signifi- 
cantly by  what  he  omits  to  do  or  to 
say."      THOMAS,    J.,    in    Cole    v. 
Cheshire,  1  Gray,  444.    Ashland  v. 
Catlettsburg,  172  Ky.  265,  189  S. 
W.  Rep.  454. 

To  constitute  a  domicile,  only 
two  elements  are  necessary — one 
of  the  act,  and  the  other  of  the  in- 
tention. Tiller  v.  Abernathy,  37 
Mo.  196;  Stevens  v.  Larwill,  110 
Mo.  App.  140,  84  S.  W.  Rep.  113. 

Intention  may  be  determined  by 
the  general  acts  and  conduct  and 
expressions  of  intention,  but  such 
expressions  alone  will  not  control 


the  ultimate  fact  in  issue  if  they 
are  inconsistent  with  the  acts  and 
general  conduct  of  the  person 
making  them.  Schmoll  v.  Schenck, 
40  Ind.  App.  581,  82  N.  E.  Rep. 
805. 

One's  own  declarations  as  to 
hi*  intent,  particularly  when  made 
after  he  has  become  appreciative 
of  the  consequences  of  a  change  of 
domicile,  are  not  controlling.  His 
intentions  are  to  be  deduced  from 
his  acts  and  from  a  consideration 
of  the  circumstances  under  which 
he  acted.  Canadian  Pacific  Ry. 
Co.  v.  Wenham,  146  Fed.  Rep.  207. 

Declarations  of  the  intention 
with  which  an  act  is  done  may  il- 
lustrate the  character  of  the  act 
as  a  part  of  the  res  gesla  (Wright 
v.  Boston,  126  Mass.  161)  but  are 
entitled  to  but  little,  if  any,  con- 
sideration when  made  either  as  the 
narration  of  a  past  act,  or  as  in- 
dicating the  purpose  which  with  an 
act  is  to  be  done  in  the  future. 
The  residence  of  a  person  will  not 
be  affected  by  such  declaration 
until  the  intention  is  carried  into 
effect  by  the  completed  act.  Shee- 
han  v.  Scott,  145  Cal.  684,  79  Pac. 
Rep.  350. 

The  place  of  legal  residence  is 
fixed  both  by  intention  and  acts, 
and  where  both  these  concur, 
there  is  little  trouble  in  determin- 
ing the  residence;  but  in  other 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


337 


tent,  presumes  that  a  man  did  not  intend  to  abandon  his 
family;  hence  the  act  of  leaving  one's  family  at  the  pre- 
existing domicile,  or  of  breaking  up  the  establishment  and 
removing  the  family  to  the  new  abode,  and  leaving  them 
there  while  returning,  raises  a  strong  presumption  of  intent 
to  retain,  in  the  first  case  the  old,13  in  the  second  case  the 
new  residence.14  Evidence  that  the  person  voted,15  or  at- 


cases  it  is  difficult  to  reconcile  the 
intention  with  the  acts,  and  when 
such  a  situation  arises,  the  law 
will  from  the  facts  and  circum- 
stances, fix  the  legal  residence  of 
the  party.  Baker  r.  Baker,  162 
Ky.  683,  173  S.  W.  Rep.  109,  L.  R. 
A.  1917, C.  171. 

13  Jennison  v.  Hapgood,  10  Pick. 
99. 

A  man's  residence  is  not  neces- 
sarih7  controlled  by  the  residence 
of  his  family.  McCord  r.  Rosene, 
39  Wash.  1,  80  Pac.  Rep.  793; 
Cochrane  r.  Boston,  4  Allen,  177; 
Schlawig  r.  De  Peyster,  83  Iowa, 
323,  49  X.  W.  Rep.  843,  13  I.  R. 
A.  785,  32  Am.  St.  Rep.  308; 
Thompson  v.  State,  28  Ala.  12; 
Exchange  Bank  v.  Cooper,  40  Mo. 
169. 

A  man  can  make  his  residence 
in  a  hotel,  separate  and  apart  from 
his  family.  McCord  r.  Rosene, 
39  Wash.  1,  80  Pac.  Rep.  793. 

One  who  was  born  and  who  lived 
in  Xew  Jersey  for  forty-five  years 
and  then  for  the  last  ten  years  of 
his  life  came  to  Xew  York  every 
winter,  living  at  a  boarding  house 
for  a  few  months,  returning  each 
time  to  his  home  in  Xew  Jersey 
and  having  no  property  in  Xew 
York,  nor  reserving  any  quarters 
there,  was  domiciled  in  Xew  Jersey. 


Matter  of  White,  116  App.  Div. 
183,  101  N.  Y.  Supp.  551. 

To  gain  a  residence  in  a  place, 
a  person  must  not  only  go  there, 
but  must  go  with  the  intention  of 
making  it  his  home  for  a  more  or 
less  definite  time,  and  where  one 
after  declaring  such  place  his  resi- 
dence neither  moved  his  family 
there,  nor  made  any  preparations 
to  do  so,  he  did  not  acquire  a 
legal  residence.  Bartlett  v.  Xew 
Boston,  77  X.  H.  476,  93  Atl. 
Rep.  796,  Ann.  Gas.  1917,  B.  777. 

14  Greene  v.  Greene,  11  Pick. 
410. 

The  issuing  of  letters  of  admin- 
istration is  no  adjudication  that 
the  deceased  was  domiciled  within 
the  jurisdiction  of  the  court  issu- 
ing the  letters.  He  may  have 
had  property  there.  Thormarin  v. 
Frame,  176  U.  S.  350,  20  Super.  Ct. 
446,  44  L.  eel.  500,  affg  102  Wis. 
653,  79  X.  W.  Rep.  39. 

13  Smith  v.  Croom,  7  Fla.  81, 158; 
Caufield  v.  Cravens,  138  La.  283, 
70  So.  Rep.  226;  Hurst  v.  Flemings- 
burg,  172  Ky.  127,  188  S.  W.  Rep. 
1085. 

If  a  married  man  has  different 
places  of  residence  at  different 
times  of  the  year,  that  will  be 
deemed  his  domicile  which  he  him- 
self selects  or  describes  or  deems 


338 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


tempted  to  vote,16  or  that  he  refrained  from  voting,17  or  that 
he  voted  elsewhere,18  or  that  he  paid  19  or  did  not  pay  20 
taxes  as  a  resident,  to  the  State  or  local  treasury  where  he 
was,  or  that  he  paid  such  taxes  elsewhere,21  though  not 
direct  evidence  of  domicile,  is  competent  on  the  question  of 
residence,  which  is  one  of  the  elements  in  proof  of  domicile. 
But  such  facts  are  slight  evidence,  taken  into  consideration 
because  of  the  want  of  direct  or  decisive  proof;  and  their 
competency  depends  on  their  manifesting  his  own  intent  or 
opinion  as  to  his  residence,  not  that  of  the  officers  of  taxation 
or  election.22 


to  be  his  home,  or  which  appears 
to  be  the  center  of  his  affairs,  or 
where  he  votes  or  exercises  the 
right  and  duties  of  a  citizen. 
Northern  t.  McCaw,  189  Mo. 
App.  362,  175  S.  W.  Rep.  317. 

The  acts  of  town  authorities 
in  registering  a  person  as  a  voter 
and  assessing  a  poll  tax  against 
him,  are  not  judicial  determinations 
establishing  his  status.  They  are 
evidence  of  his  domicile  but  are 
not  conclusive.  In  re  Sedgwick, 
223  Fed.  Rep.  655. 

16Guier  v.  O'Donnell,  1  Binn. 
354  n. 

17Hitt  v.  Crosby,  26  How.  Pr. 
413. 

Declarations  as  to  one's  domicile, 
the  exercise  of  political  rights,  pay- 
ment of  personal  taxes,  a  place  of 
residence  or  of  business,  are  the 
indicia  ordinarily  resorted  to  to 
prove  domicile.  Tuttle  r.  Wood, 
115  Iowa,  507,  88  X.  W.  Rep. 
1056. 

18  Lincoln  v.  Hapgood,  11  Mass. 
350. 

19  See  Mann  v.  Clark,  33  Vt.  61. 
Merely  owning  property  in  an- 


other State  and  paying  taxes  on  it, 
and  declaring  from  time  to  time 
the  intention  of  going  there  to 
make  a  home,  will  not  change  one's 
domicile.  In  re  Dalrymple,  215 
Pa.  367,  64  Atl.  Rep.  554. 

MHitt  v.  Crosby,  26  How.  Pr. 
413. 

21  If  the  law  of  the  foreign  State 
does  not,  like  the  law  of  the  forum, 
impose  taxes  on  personalty  merely 
upon  residence,  it  is  for  the  ad- 
verse party  to  show  the  law  in 
order  to  render  evidence  of  having 
paid  taxes  in  the  other  State  in- 
competent.    Hulett  r.  Hulett,  37 
Vt.  581,  587. 

22  Thus,  if  the  registering  officers 
have   no   authority   to   register  a 
voter   except   on   his   application, 
their  testimony,  that  they  decided 
him  to  be  an  inhabitant  and  regis- 
tered him,  is  incompetent  without 
evidence    that    he    requested    it. 
Fisk  v.  Chester,  8  Gray   (Mass.), 
506. 

Neither  voting  nor  registration 
as  a  voter  is  conclusive  on  the  ques- 
tion of  domicile.  Easterly  v.  Good- 
win, 35  Conn.  279,  95  Am.  Dec. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


339 


Evidence  of  acts  is  not  confined  to  acts  contemporaneous 
with  the  alleged  change.  After  proof  of  actual  removal  or  of 
declarations  of  intent  to  remove,  it  is  competent  to  prove 
the  character  of  the  sojourn  at  either  place.23 

It  is  said  that  intent  must  be  proved  by  very  satisfactory 
evidence,24  especially  when  the  change  is  to  a  foreign  coun- 
try,25 but  this  requirement  varies  according  to  the  transitory 
or  settled  habits  of  the  person. 


237;  Enfield  v.  Ellington,  67  Conn. 
459,  34  Atl.  Rep.  818;  East  Liver- 
more  v.  Farmington,  74  Me.  154; 
Quinn  v.  Nevills,  7  Cal.  App.  231, 
93  Pac.  Rep.  1055. 

Where  respective  owners  were 
required  to  list  their  personalty  for 
taxation  purposes,  the  fact  that  a 
person's  property  was  not  so  listed, 
is  inadmissible  on  the  question 
of  residence.  Worsham  v.  Ligon, 
144  Ga.  707,  87  S.  E.  Rep.  1025. 

23  See  Wilson  v.  Terry,  11  Allen 
(Mass.),  206;  Crawford  r.  Wilson, 
4  Barb.  523.  So,  to  show  that  a 
removal  before  suit  brought  was 
with  intent  to  take  up  a  domicile, 
evidence  is  competent  that  it  was 
continued  after  so  brought,  and 
down  to  the  time  of  trial;  for  these 
facts,  although  occurring  pending 
the  action,  are  competent  as  throw- 
ing light  upon  the  character  of  the 
previous  fact.  Hulett  v.  Hulett, 
37  Vt.  581,  585. 

The  place  of  residence  being 
one  of  intention,  an  expression  of 
such  an  intention  can  only  be 
overcome  by  strong  circumstances 
to  the  contrary.  Northern  v. 
McCaw,  189  Mo.  App.  362,  175 
S.  W.  Rep.  317. 


24  Donaldson  v.  McClure,  20 
Scotch  Sess.  Gas.,  2d  ser.  307,  321, 
aff'd  in  3  McQ.  852.  The  circum- 
stances of  residence,  the  estab- 
lishment of  a  business  place,  the 
acquisition  of  a  house  for  a  resi- 
dence, and  the  declaration  of  the 
party  and  the  exercise  of  political 
rights,  are  usually  relied  upon  to 
establish  the  animus  manendi. 
Succession  of  Steers,  47  La.  Ann. 
1551, 18  So.  Rep.  503. 

In  the  absence  of  proof  that  a 
person  otherwise  qualified  has  ac- 
quired a  residence  elsewhere,  he 
must  be  considered  to  be  a  resi- 
dent of  the  parish  where  his  work 
requires  him  to  stay,  where  he  was 
born,  and  where  he  has  lived  and 
voted;  and  it  makes  no  difference 
that  he  has  never  had  in  said  parish 
any  other  home  than  a  boarding' 
house,  while  he  had  had  in  another 
parish  a  home  where  he  has  kept 
his  wife  and  children,  whom  he 
visited  as  often  as  he  could.  Es- 
topinal  v.  Michel,  121  La.  879, 
46  So.  Rep.  907,  19  L.  R.  A.  N.  S. 
759. 

26  Moorhouse  v.  Lord,  10  H.  of  L. 
283. 


340 


ACTIONS  BY  AND  AGAINST  HEIRS  AND 


IX.  WILLS 

58.  Presumptions,  and  Burden  of  Proof  as  to  Intestacy. 

The  law  never  presumes  a  will 26  in  the  absence  of  all 
evidence ;  and  in  trying  the  title  of  an  heir,  it  is  not  necessary 
for  him  to  show  that  his  ancestor  died  intestate.  The  in- 
testacy is  presumed  until  the  contrary  appears.27  And  mere 
existence  of  a  will  being  shown,  the  law  does  not  presume  that 
it  was  a  will  of  real  as  well  as  of  personal  property.28 

59.  Domestic  Will  Proved  by  Producing  Probate. 

A  will  is  put  in  evidence  by  showing  it  to  have  been  duly 
proved  M  in  the  probate  or  other  competent  court  within  the 

26  Duke  of  Cumberland  v.  Graves,      Nolan  v.  Nolan,  169  App.  Div.  372, 


9  Barb.  595,  606. 

The  right  to  dispose  of  property 
by  will  is  not  a  natural  right.  It 
is  one  conferred  and  regulated  by 
statute.  Peace  v.  Edwards,  170 
N.  C.  64,86  S.  E.  Rep.  807;  Irwin 
v.  Rogers,  91  Wash.  284,  157  Pac. 
Rep.  690,  L.  R.  A-.  1916,  E.  1130; 
Alexander  v.  Johnston,  171  N.  C. 
468,  88  S.  E.  Rep.  785. 

The  will,  in  contemplation  of 
law,  is  in  effect  at  the  instant  of  the 
death  of  the  testator  and  is  to  be 
considered  as  if  it  bore  date  then. 
Dickinson  v.  Belden,  268  111.  105, 
108  N.  E.  Rep.  1011. 

"3  Washb.  R.  P.  18  (37).  Be- 
cause it  is  the  negative  (Lyon  v. 
Kain,  36  111.  368) ;  and  because  the 
law  entitles  heirs  to  rest  on  the 
right  of  inheritance  until  a  will 
is  proved.  Delafield  v.  Parish,  26 
N.  Y.  9. 

The  law  favors  that  construction 
of  a  will  which  will  prevent  partial 
intestacy;  but  only  when  a  con- 
trary intention  is  not  expressed. 


151  N.  Y.  Supp.  355. 

The  presumption  that  a  testator 
did  not  intend  to  die  intestate  as 
to  any  of  his  property,  may  be  re- 
butted by  the  provisions  of  the 
will,  or  evidence  to  the  contrary. 
Edwards  v.  Mudge,  186  Mich.  71, 

152  N.  W.  Rep.  902. 

28  Duke  of  Cumberland  v.  Graves 
(above).    The  contrary  held  after 
probate,  in  Stevenson  v.  Huddleson, 
13  B.  Monr.  (Ky.)  299. 

29  A  copy  of  the  decree  of  probate, 
not  the  mere  certificate  of  the  clerk 
that  the  will  has  been  proved,  is 
the   proper   evidence.     Creasy   v. 
Alverson,  43  Mo.  13.    At  common 
law,  the  will  itself  is  the  primary 
evidence  as  to  lands;  the  probate 
the  primary  and  exclusive  evidence 
as  to  personalty. 

A  joint  will  contained  in  a  single 
instrument  is  the  will  of  each  of 
the  makers,  and  at  the  death  of 
one  may  be  probated  as  his  will, 
and  be  again  admitted  to  probate 
at  the  death  of  the  other,  as  the 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  341 

State;  and  the  mode  of  due  probate  depends  on  the  statutes 
of  the  State,  which  should  be  carefully  consulted.  This  is 
now  usually  the  primary  and  exclusive  mode  of  proving  a 
domestic  will,  or  a  devise  of  lands  within  the  State.  Under 
a  statute  which  allows  the  record,  or  an  exemplification  of 
the  record,  to  be  received  in  evidence  the  same  as  the  orig- 
inal,30 the  whole  record  must  be  presented  or  exemplified,— 
that  is,  the  record  of  the  proofs,31  as  well  as  of  the  will  it- 
self.32 The  original  record  of  the  surrogate  is  equally  com- 
petent; 33  and,  independent  of  statute,  would  be  so  on  proof 
that  the  original  will  was  lost.34  If  from  the  record,  including 
the  sworn  petition  for  probate,  if  one  was  presented,  jurisdic- 
tion appears  on  the  face  of  the  proceedings,  the  authority 
for  record  is  prima  facie  established,  and  the  will  and  record 
are  admissible  in  evidence  without  further  proof  aliunde.3* 
If  it  affirmatively  appear  by  them  that  the  will  was  not  duly 
proved, — as,  for  instance,  where  it  was  admitted  on  the  oath 
of  one  of  the  subscribing  witness,  without  accounting  for 
the  others, — the  probate  is  not  evidence.36  The  proofs  are, 

will   of   the   latter.     Campbell   v.  the  probate.    Gemmell  v.  Wilson, 

Dunkelberger,  172  Iowa,  385,  153  40  Kan.  764,  20  Pac.  Rep.  458. 

N.  W.  Rep.  56.  "  Morris  v.  Keyes,  1  Hill,  540; 

Where  there  is  no  contest  on  the  Caw  v.  Robertson,  5  N.  Y.,  125; 

probate  of  a  will,  the  only  question  Aokley  v.  Dygert,  33  Barb.  176; 

is  as  to  the  sufficiency  of  the  proof  Marr  v.   Gilliam,    1   Coldw.   488, 

to  establish  it.     Matter  of  Hall,  512;  Bright  v.  White,  8  Mo.  422, 

154    N.  Y.  Supp.  317,   90  Misc.  427. 

216.  33  Elden  v.  Keddell,  8  East,  187. 

30  See   N.   Y.    Code   Civ.   Pro.,  "  Jackson  v.  Lucett,  2  Cai.  363. 
§  2623.     In  Pennsylvania,  probate  "  Bolton  v.  Jacks,  6  Robt.  166. 
without  the  proofs  is  held  prima  As  to  presumptions  in  favor  of  due 
facie  evidence.    Kenyon  v.  Stewart,  notice,  etc.,  see  Marcy  v.  Marcy, 
44  Penn.  St.  188.  6   Mete.    (Mass.)   360;   Bolton  «. 

31  Including  the  sworn  petition,  Brewster,  32  Barb.  389. 

if  any.    Bolton  v.  Jacks,  6  Robt.          3«  Staring  v.  Bowen,  6  Barb.  109. 

166.  And  see  Thompson  v.  Thompson, 

Where  a  will  is  duly  proved  and  9  Penn.  St.  234.    Contra,  Telford 

admitted  to  probate  in  one  State,  v.  Barney,  1  Greene  (Iowa),  575; 

it  may  be  proved  in  any  other  State  Stevenson    v.    Huddleson,    13    B. 

by  producing  a  certified  copy  of  Monr,  (Ky.)  299. 


342  ACTIONS    BY   AND    AGAINST   HEIRS   AND 

however,  required  only  for  authentication;  they  do  not 
become  evidence  in  the  cause  for  other  purposes.37  Without 
the  probate,  the  will  itself  as  a  title  to  property,  or  as  giving 
a  right  to  the  executor  or  administrator  to  sue,  cannot  be 
received  in  evidence.38 

60.  Decree  of  Probate  Court,  How  Far  Conclusive. 

The  decree  of  a  surrogate  having  jurisdiction  of  the  sub- 
ject, declaring  a  will  of  personalty  duly  executed,  is  conclusive 
evidence  thereof,  against  all  the  world,  in  a  collateral  action, 
as  to  personalty.39  But  as  to  real  property  the  probate  of  a 
will  containing  a  devise  was  not,  at  common  law,  any  ev- 
idence whatever  of  its  execution ;  and  the  American  statutes 
making  it  competent  evidence  do  not,  without  express  lan- 
guage or  necessary  implication,  have  the  effect  to  make  it 
conclusive,  but  only  prima  fade  evidence.  The  effect  of  the 
probate,  whether  conclusive  (as  it  always  is  as  to  personalty, 
and  under  some  statutes  is  as  to  realty),  or  prima  fade  (as 
usually  in  respect  to  realty),  extends  to  all  points  peculiar 
to  the  testamentary  act,  and  which  were  necessarily  deter- 
mined, including  the  capacity  of  the  testator,  in  respect  of 

37  Nichols  v.   Romaine,  3  Abb.  by  express  statutes  usual  in  the 
Pr.  122.  American  States. 

38  Graham  v.  Whitely,  26  N.  J.  The  judgments  of  the  courts  in 
Law  254;  Thorn  v.  Shiel,  15  Abb.  admitting  wills  to  probate,  where 
Pr.    N.    S.    81;     1    Whart.    Ev.  the  courts  had  jurisdiction  of  the 
78,   §  66,   and   cases   cited.      And  subject-matter,  are  conclusive  un- 
see    Broderick's    Will,    21    Wall.  til  set  aside  upon  appeal.     Kem- 
503.  merer  v.  Kemmerer,  233  Til.  327, 

39Vanderpocl    v.    Van    Valken-  84  N.  E.  Rep.  256,  122  Am.  St. 

burgh,  6  N.  Y.  (2  Seld.)  190;  Mat-  Rep.  169. 

ter  of  Kellum,  50  Id.  298;  Colton  The  decree  admitting  a  will  to 
•?.  Ross,  2  Paige,  396;  Muir  v.  probate  cannot  be  attacked  col- 
Trustees  of  Leake  &  Watts  Orphan  laterally  in  the  absence  of  fraud. 
House,  3  Barb.  Ch.  477.  See  also  Bolton  v.  Schriever,  135  N.  Y.  65, 
Clark  v.  Bogardus,  4  Paige,  623.  31  N.  E.  Rep.  1001,  18  L.  R.  A. 
This  is  so  at  common  law,  and  also  242;  Caulfield  v.  Sullivan,  85  N.  Y. 

153. 


NEXT   OF    KIN,    DEVISEES    AND    LEGATEES 


343 


age,40  coverture  or  non-coverture,41  soundness  of  mind,42 
the  form  and  mode  of  execution,43  the  competency  of  wit- 
nesses,44 and  the  weight  of  the  evidence  upon  these  points.45 
It  is  also  evidence  conclusive  or  prima  fade,  as  the  case  may 
be,  in  respect  to  the  contents  of  the  will,  except  that  for  the 
purposes  of  construction  or  interpretation,  so  far  as  that  may 
appear  from  the  grammmatical  skill  or  the  accuracy  of  the 
writer  in  punctuation,  parenthetical  clauses,  mode  of  writing, 
and  the  like,  which  are  never  perfectly  reproduced  in  a  copy, 
the  court  may,  even  when  the  probate  is  conclusive,  examine 
the  original,46  and  for  this  purpose  production  of  the  original 


40  Howard  v.  Moot,  64  N.  Y.  262, 
affi'g  2  Hun,  475.    Otherwise  where 
the  age  for  devising  real  property 
was    not    necessarily    determined. 
Dickenson  v.  Hayes,  31  Conn.  417. 

41  Cassels  v.  Vernon,  5  Mas.  332, 
and  see  Picquet  r.  Swan,  4  Mas. 
443. 

«  Poplin  r.  Hawke,  8  N.  H.  124; 
Osgood  v.  Breed,  12  Mass.  531. 

An  ex  parte  probate  is  not  evi- 
dence of  testamentary  capacity. 
Bradley  v.  Onstott,  180  Ind.  687, 
103  N.  E.  Rep.  798. 

43  Vanderpoel  v.  Van  Valken- 
burgh  (above). 

The  probate  decree  is  presump- 
tive evidence  of  the  facts  as  to 
proper  execution,  as  to  the  com- 
petency of  the  testator  and  that  he 
was  not  under  restraint.  Drake  v. 
Cunningham,  127  App.  Div.  79,  111 
N.  Y.  Supp.  199. 

In  an  action  to  contest  a  will, 
the  probate  thereof  is  prima  facie 
evidence  of  the  due  attestation, 
execution  and  validity  of  the  will. 
Scott  v.  Thrall,  77  Kan.  688,  95 
Pac.  Rep.  563,  127  Am.  St.  Rep. 
449,  17  L.  R.  A.  N.  S.  184. 


The  probate  of  a  will  is  presump- 
tive evidence  that  it  was  duly  ex- 
ecuted and  that  it  is  valid  as  a 
will  of  real  property  as  against 
the  parties  duly  cited  and  against 
persons  claiming  through  or  under 
such  parties.  Drake  v.  Pechin,  58 
Misc.  449,  109  N.  Y.  Supp.  474. 

44  Fortune  v.  Buck,  23  Conn.  1. 

45Holliday  v.  Ward,  19  Penn. 
St.  490;  Holman  v.  Riddle,  8  Ohio 
St.  384;  Jourden  v.  Meier,  31  Mo. 
40;  Taylor  v.  Burnsides,  1  Gratt. 
(Va.)  165.  Contra,  Ferguson  v. 
Hunter,  7  111.  (2  Gilm.)  657;  Hale 
v.  Monroe,  28  Md.  98.  See  also, 
as  to  probate  by  less  than  the  stat- 
utory number  of  witnesses,  par- 
agraph 59,  note  3. 

Where  a  probate  court  has  ju- 
risdiction in  admitting  a  will  to 
probate,  all  presumptions  are  in 
favor  of  the  regularity  of  its  pro- 
ceedings, and  in  a  collateral  attack 
upon  such  probate  the  court  will 
not  inquire  into  the  degree  of  proof 
required  by  the  probate  court. 
Kolterman  v.  Chilvers,  82  Nebr. 
216,  117  N.  W.  Rep.  405. 

«  1  Wms.  Ex'r,  6th  Am.  ed.  637, 


344 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


may  be  compelled  by  subpoena  duces  tecum.47  The  probate, 
however,  does  not  determine  the  legality  of  the  dispositions 
of  the  will.  In  those  States  where  the  probate  is  only  prima 
fade  evidence  as  to  realty,  it  may  be  impeached  by  evidence 
to  the  contrary  as  to  capacity  or  execution,  or  on  the  weight 
of  evidence,48  even  by  parties  who  were  parties  to  the  probate 
proceedings.49  Where  probate  would  not  be  conclusive  in 
favor  of  a  will,  a  decree  of  the  probate  court  rejecting  the 
will  is  not  conclusive  against  it.5C  Where  probate  would  be 
conclusive  in  its  favor,  rejection  is  conclusive  against  it.51 
In  any  case,  the  jurisdiction,  over  the  subject,  of  the  surro- 
gate whose  decree  is  produced  may  be  impeached,  and  in  a 
case  of  personal  property  where  this  is  done,  as  well  as  in  all 
cases  of  real  property,  the  validity  of  the  will  may  be  ques- 
tioned.52 

61.  Formalities  of  Execution. 

When  proof  of  execution  is  necessary,  it  must  appear, 


n.,  citing  Manning  v.  Purcell,  24 
L.  J.  Ch.  523,  n.,  3  Redf.  on  W.  62 
(8)  and  n. 

The  legal  effect  of  a  will  or  of 
its  various  provisions,  its  con- 
struction and  operation,  cannot  be 
passed  upon  on  an  application  to 
admit  the  will  to  probate.  Green- 
wood v.  Murray,  26  Minn.  259,  2 
X.  W.  Rep.  945. 

47  See    Kenyon    v.    Stewart,    44 
Penn.  St.  179,  unless  deposited  in 
the  probate  court,  pursuant  to  law. 
Randall  v.  Hodges,  3  Bland  (Md.), 
477. 

48  See  Staring  r.  Bowen,  6  Barb. 
109;  Rowland  r.  Evans,  6  Perm. 
St.  435;  Holliday  r.  Ward,  19  Id. 
490;  Kenyon  r.  Stewart,  44  Id.  179. 
The  opposing  party  may  even  show 
statements  made  out  of  court  by 
one  of  the  subscribing  witnesses, 


in  order  to  contradict  the  state- 
ments of  such  witness  in  the  record 
of  the  proofs  before  the  surrogate, 
as  to  the  due  execution  of  the  will. 
Otterson  r.  Hofford,  36  N.  J.  (7 
Vroom)  129,  s.  c.,  13  Am.  R.  429. 
See  note  8  (below). 

Where  by  statute  the  probate 
of  any  will  is  made  "conclusive  as 
to  its  due  execution"  it  is  not  con- 
clusive as  to  construction  of  the 
provisions  of  the  will.  Jones  v. 
Roberts,  84  Wis.  465,  54  N.  W. 
Rep.  917. 

49Bogardus  v.  Clark,  4  Paige, 
623. 

50  Smith    v.    Bonsall,    5    Rawle 
(Penn.),  80. 

51  Picquet  v.  Swan,  4  Mass.  461. 

52  Redf.  Surr.  Pr.  119,  Code  of 
1877,  §  2473. 


NEXT    OF    KIX,    DEVISEES    AND    LEGATEES 


345 


1.  That  the  will  was  subscribed  by  the  testator,  at  the  end; 
that  is  to  say,  after,  and  in  reasonable  proximity  to  the  last 
clause;  2.  That  it  was  subscribed  by  the  testator  in  the 
presence  of  each  of  at  least  two  witnesses,  or  that  it  was 
acknowledged  by  him  to  have  been  made,  to  each  of  such 
attesting  witnesses,  or  to  such  of  them  as  were  not  present  at 
the  making  of  the  subscription;  3.  That  at  the  time  of  mak- 
ing such  subscription,  or  at  the  time  of  acknowledging  the 
same, — or  both,  if  subscribed  in  presence  of  one  and  acknowl- 
edged after  subscription  to  the  other, — he  declared  in  the 
presence  of  both  witnesses,  or  in  the  presence  of  each,  that 
the  instrument  was  his  will;  4.  That  each  of  at  least  two  such 
witnesses  signed  his  name  as  a  witness  at  the  end  of  the  will, 
at  the  testator's  request.  Any  of  the  acts  thus  required  of 
the  testator  may  be  done  by  another,  in  his  presence  and  by 
his  direction  or  manifested  approval ;  and  the  order  in  which 
they  are  to  be  done  is  not  material,  except  that  the  testator 
must  subscribe  before  the  witnesses  do.53  On  a  trial  in  an 


53  These  rules,  which  state  the 
requisites  under  the  New  York 
statute,  are  from  Redf.  Surr.  Pr. 
75.  The  statutes  in  the  various 
States  vary  more  or  less. 

Under  a  statute  requiring  that  a 
will  be  signed,  it  is  sufficient  if  the 
name  of  the  testator  appears  in 
his  handwriting  in  the  body  of  the 
instrument.  Peace  r.  Edwards, 
170  N.  C.  64,  86  S.  E.  Rep. 
807. 

In  the  absence  of  a  statute  pro- 
viding that  a  will  must  be  dated, 
a  will  without  a  date  is  valid. 
Peace  r.  Edwards,  170  N.  C.  64, 
86  S.  E.  Rep.  807. 

A  testator  should  sign  his  name 
at  the  physical  end  of  the  instru- 
ment but  there  is  no  law  which  re- 
quires a  will  or  an  attestation 
clause  to  be  dated.  Matter  of  Tal- 


bot,  154  N.  Y.  Supp.  1083,  91 
Misc.  382. 

A  superscription  on  a  sealed  en- 
velope in  a  decedent's  handwriting 
indicating  that  the  enclosed  is  his 
mil,  does  not  constitute  a  valid 
signature  to  an  unsigned  holo- 
graphic will  found  within  the  en- 
velope, inasmuch  as  a  will  must  be 
signed  at  the  end  thereof.  In  re 
Poland,  137  La.  219,  68  So.  Rep. 
415. 

When  the  testator  signs  by  mak- 
ing his  mark,  he  signs  and  executes 
the  will  himself,  although  his  name 
may  have  been  subscribed  by  an- 
other at  his  request.  Wilson  v. 
Craig,  86  Wash.  465, 150  Pac.  Rep. 
1179,  Ann.  Cas.  1917,  B.  871. 

One  who  in  the  presence  of  and 
by  the  express  request  of  a  testator 
signs  the  name  of  the  testator  to 


346 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


action  at  law,  the  execution  may  be  proved  by  one  witness, 
if  he  is  able  to  prove  perfect  execution; 54  but  if  he  can  only 
prove  his  own  signature,  the  other  witnesses,  if  living,  must 
be  produced,  or,  if  they  are  dead,  their  handwriting  and  that 
of  the  testator  must  be  proved;  and  it  is  then  a  question  of 
fact,  whether,  under  all  the  circumstances,  all  the  requisites 
of  the  statute  are  to  be  deemed  complied  with.55  The 
testimony  of  the  subscribing  witnesses,  whether  in  support 
of  or  against  the  will,  is  not  conclusive,  but  is  liable  to  be 
rebutted  by  other  evidence,  either  direct  or  circumstantial.56 


his  will,  is  competent  as  an  attest- 
ing and  subscribing  witness  thereto. 
Steele  v.  Marble,  221  Mass.  485, 
109  N.  E.  Rep.  357. 

Where  it  was  shown  by  the  tes- 
timony of  the  attesting  witnesses 
that  they  had  known  the  testatrix 
for  several  years;  that  they  had 
seen  her  sign  the  paper  and  at  her 
request  had  signed  as  witnesses; 
that  the  paper  had  not  been  read 
to  them  and  that  the  testatrix  did 
not  say  in  so  many  words  that  it 
was  her  will  but  that  they  under- 
stood it  was  a  will,  it  was  held  that 
this  was  sufficient  proof*  of  execu- 
tion. Padgett  v.  Pence  (Mo.  App.), 
178  S.  W.  Rep.  205. 

54  Cornwall  r.  Wooley,  1  Abb. 
Ct.  App.  Dec.  441.  Otherwise, 
perhaps,  in  an  action  in  equity  to 
establish  the  will.  Thornton  v. 
Thornton,  39  Vt.  122,  s.  c.,  6  Am. 
L.  Reg.  N.  S.  341.  In  a  statutory 
contest  of  a  will,  it  is  proper  for  the 
proponents  for  probate  to  take  the 
affirmative  to  show  its  due  execu- 
tion. Morton  v.  Heidorn,  135  Mo. 
608,  37  S.  W.  Rep.  504. 

A  will  is  duly  executed  and  pub- 
lished, though  the  witnesses  neither 


saw  the  testator's  signature,  nor 
were  made  acquainted  with  the 
instrument  they  attested,  provided 
they  were  requested  by  the  testator 
to  subscribe  the  memoradum  of 
attestation.  Shewmake  v.  Shew- 
make,  144  Ga.  801,  87  S.  E.  Rep. 
1046. 

A  full  and  complete  attestation 
clause  properly  signed  is  prima 
facie  evidence  of  the  due  execution 
of  the  will,  and  has  the  effect  of 
shifting  the  burden  of  proof  to 
those  who  deny  the  proper  execu- 
tion of  the  will.  Shewmake  v. 
Shewmake,  144  Ga.  801,  87  S.  E. 
Rep.  1046. 

"Jackson  v.  Le  Grange,  19 
Johns.  386;  Jackson  r.  Vickory,  1 
Wend.  406. 

A  bequest  for  charitable  uses 
which  is  void  because  the  will  was 
not  executed  at  a  time  nor  in  the 
manner  prescribed  by  law,  does 
not  prevent  the  probate  of  the  will 
but  affects  only  the  question  of 
distribution.  In  re  Galli,  250  Pa. 
120,  95  Atl.  Rep.  422. 

^Orser  v.  Orser,  24  N.  Y.  51; 
Theological  Seminary  of  Auburn 
r.  Calhoun,  25  N.  Y.  422,  rev'g  38 


NEXT    OF    KIN,    DEVISEES    AND    LEGATEES 


347 


But  the  rebutting  proof  should  be  clear.57  The  signature  of 
a  deceased  witness  to  a  full  attestation  clause  is  not  alone 
enough,  against  the  positive  testimony  of  a  surviving  wit- 
ness.58 But  a  full  attestation  clause  may  after  the  lapse  of 
time  be  enough  as  against  the  entire  forgetfulness  of  the 
witnesses.59  The  subscribing  witnesses  are  subject  to  same 
rules  as  to  contradiction  and  impeachment  as  other  wit- 
nesses.60 The  conduct  and  declarations  of  the  testator  at  the 


Barb.  148,  s.  P.,  Peck  v.  Can-,  27 
N.  Y.  9,  affi'g  38  Barb.  77,  and  see 
25  N.  Y.  425,  note,  and  cases  cited. 
The  witnesses  to  a  will  are  not 
the  only  persons  competent  to 
prove  its  due  execution  or  the  san- 
ity of  the  testator.  Those  facts 
may  be  proved  by  other  witnesses. 
Morton  v.  Heidorn,  135  Mo.  608, 
37  S.  W.  Rep.  504. 

Where  there  is  no  contest,  the 
testimony  of  the  two  subscribing 
witnesses  is  sufficient  for  the  pro- 
bate of  the  will.  Matter  of  Her- 
mann, 83  N.  Y.  Misc.  283,  145  N. 
Y.  Supp.  291. 

Where  the  testimony  of  the  sub- 
scribing witnesses  is  uncontradicted 
the  will  will  be  deemed  to  have 
been  properly  executed.  Matter 
of  Smart,  84  N.  Y.  Misc.  336,  145 
N.  Y.  Supp.  838. 

-.Redf.  Surr.  Pr.  98. 

Where  it  appears  the  signature 
to  the  will  produced  is  the  genuine 
signature  of  the  testator  and  that 
the  two  subscribing  witnesses 
signed  in  his  presence,  a  prima 
fade  case  is  made  in  favor  of  the 
due  execution  of  the  will,  and  this 
prima  facie  case  is  not  overcome 
by  the  mere  fact  that  the  sub- 
scribing witnesses  testify  they 
failed  to  notice  whether  the  will 


was  signed.    Thompson  v.  Karme, 
268  111.  168,  108  N.  E.  Rep.  1001. 

58  Orser  v.  Orser  (above). 

59  Nelson  v.  McGiffert,  3  Barb. 
Ch.  158. 

Where  there  is  a  full  attesta- 
tion clause  signed  by  the  attesting 
witnesses  the  presumption  is  that 
the  will  was  duly  executed.  Mat- 
ter of  Smart,  84  N.  Y.  Misc.  336, 
145  N.  Y.  Supp.  838. 

The  testimony  of  the  attesting 
witnesses  that  the  statute  was  not 
complied  with  may  be  too  positive 
to  be  overcome  by  presumption 
from  the  very  full  certificate  of  at- 
testation contradicting  the  attest- 
ing witnesses.  In  re  Solomon,  145 
X.  Y.  Supp.  528. 

A  presumption  of  due  execution 
arises  where  a  codicil  bears  the 
signature  of  the  testator,  a  com- 
plete attestation  clause,  and  the 
signatures  thereto  of  two  sub- 
scribing witnesses.  In  re  Gahagan, 
82  N.  J.  L.  601,  89  Atl.  Rep.  771. 

If  there  is  no  attestation  clause 
the  burden  of  proof  that  the  will 
was  executed  in  accordance  with 
the  statute  is  on  the  proponent. 
In  re  Van  Handlyn,  83  N.  J.  L.  290, 
89  Atl.  Rep.  1010. 

w  Peebles  v.  Case,  2  Bradf.  226; 
Losee  ».  Losee,  2  Hill,  609.  And 


348 


ACTIONS    BY    AND    AGAINST    HEIRS    AND 


time  of  the  execution  are  competent  upon  the  question  of 
execution,  and  its  intelligence  and  freedom,  because  a  part 


as  to  weight  of  testimony,  see 
Thornton  v.  Thornton,  39  Vt.  122, 
s.  c.,  6  Am.  L.  Reg.  (N.  S.)  341; 
Stevens  v.  Van  Cleve,  4  Wash.  C. 
Ct.  262;  Turner  r.  Cheeseman,  15 
N.  J.  Eq.  243.  But  evidence  of 
the  bad  character  of  a  deceased 
subscribing  witness  is  not  admis- 
sible. Boylan  ads.  Meeker,  4 
Butcher,  275.  Whether  his  dec- 
larations of  opinion  as  to  the  in- 
sanity of  testator  are  admissible, 
compare  Scribner  r.  Crane,  2 
Paige,  147;  Baxter  r.  Abbott,  7 
Gray  (Mass.),  71;  Beaubien  v.  Ci- 
cotte,  12  Mich.  459.  The  party 
calling  the  subscribing  witness  to 
support  the  will  may  impeach  his 
testimony  unfavorable  to  the  will, 
by  proof  of  his  declarations  of  fact 
in  its  favor,  though  not  by  declara- 
tions of  contrary  opinion,  nor  by 
attacking  his  veracity  generally. 
Thornton  v.  Thornton  (above). 
Compare  Fulton  Bank  v.  Stafford, 
2  Wend.  483,  and,  as  to  contrary 
opinions,  Schell  v.  Plumb,  55  N. 
Y.  592,  affi'g  16  Abb.  Pr.  N.  S.  19. 
It  is  compentent  to  show  by  cross- 
examination  of  a  subscribing  wit- 
ness to  a  will  that  he  has  received 
or  been  promised  a  reward  for  giv- 
ing testimony,  and  if  this  is  denied 
by  the  witness,  admissions  or  dec- 
larations to  that  effect,  made  by 
the  witness  out  of  court,  may  be 
proved.  In  re  Will  of  Snelling,  136 
N.  Y.  515,  32  N.  E.  Rep.  1006. 
"Some  question  has  been  made  by 
the  respondent  as  to  the  compe- 
tency of  the  declaration  of  a  sub- 


scribing witness  to  impeach  the 
execution  of  a  will;  but  the  case  of 
Losee  v.  Losee  (2  Hill,  612),  seems 
to  be  an  authority  for  the  admissi- 
bility  of  such  evidence.  It  is  there 
said  that  'proof  of  the  signature  of 
a  deceased  subscribing  witness  is 
presumptive  evidence  of  the  truth 
of  everything  appearing  upon  the 
face  of  the  instrument  relating  to 
its  execution,  as  it  is  presumed  the 
witness  would  not  have  subscribed 
his  name  in  attestation  of  that 
which  did  not  take  place.  But 
this  presumption  may  be  rebutted, 
and  hence,  the  propriety  and  even 
necessity  of  permitting  him  to  be 
impeached  in  the  usual  mode,  as  if 
he  were  living  and  had  testified  at 
the  trial  to  what  his  signature  im- 
ports.' The  reason  for  admitting 
such  evidence  in  a  case  like  the 
present  was  stated  by  Bugley,  J., 
in  Doe  v.  Ridgway  (4  Barn.  &  Aid. 
52),  thus:  He  (the  attesting  witness 
to  a  bond)  must  have  been  called, 
if  he  had  been  alive,  and  it  would 
then  have  been  competent  to  prove 
by  cross-examination  his  declara- 
tions as  to  the  forgery  of  the  bond. 
Now  the  party  ought  not,  by  the 
death  of  the  witness,  to  be  deprived 
of  obtaining  the  advantage  of  such 
evidence."  In  re  Will  of  Hesdra, 
119  N.  Y.  615-616,  23  N.  E.  Rep. 
555. 

The  subscribing  witnesses  may 
be  shown  to  be  unworthy  of  belief. 
Magruder's  Succ.,  135  La.  147,  65 
So.  Rep.  14. 

If  the  circumstances  surround- 


NEXT   OF    KIN,    DEVISEES   AND    LEGATEES 


349 


of  the  res  gestue;  but  his  previous  or  subsequent  conduct  and 
declarations  are  not  competent  upon  this  question,61  except 
within  the  limits  below  stated  as  to  mental  capacity  and  un- 
due influence.62  Proof  of  due  execution  raises  a  sufficient 
presumption  of  knowledge  of  the  contents,  unless  circum- 
stances of  suspicion  exist, — for  instance,  where  the  will  was 
drawn  up  by  a  devisee.  In  such  case  he  must  give  affirm- 
ative evidence  that  the  testator  knew  its  contents,  and  that 
it  expressed  his  real  intentions.  Any  evidence  is  sufficient 
which  shows  that  he  had  full  knowledge  of  the  contents, 
and  executed  it  freelv  and  without  undue  influence.63  So 


ing  the  execution  of  a  paper  show- 
that  it  was  executed  as  a  last  will 
and  testament,  it  may  be  admitted 
to  probate  against  the  testimony 
of  all  the  subscribing  witnesses,  or 
on  the  testimony  of  one  contrary 
to  the  testimony  of  the  other. 
Matter  of  Bassett,  84  Misc.  656, 
146  N.  Y.  Supp.  842;  In  re  Cottrell, 
95  N.  Y.  329;  Matter  of  Marley, 
140  N.  Y.  App.  Div.  823,  125  X. 
Y.  Supp.  886. 

"Waterman  v.  Whitney,  11 
N.  Y.  172;  Boylan  ads.  Meeker 
(above).  Compare  Sugden  v.  Ld. 
St.  Leonards,  L.  R.  1  Prob.  Div. 
154,  227. 

"A  competent  witness  is  one  who 
at  the  time  of  attesting  a  will 
would  be  legally  competent  to  tes- 
tify in  a  court  of  justice  to  the  facts 
which  he  attests  by  subscribing 
his  name  to  the  will."  In  re  Wiese, 
98  Neb.  463,  153  N.  W.  Rep.  556, 
L.  R.  A.  1915,  E.  832. 

62  Paragraphs  63  and  70.  And 
except,  perhaps,  if  part  of  the  res 
gestce  of  his  custody  of  the  will  (see 
paragraph  75,  note  9,  below),  or 
to  rebut  evidence  impeaching  the 


genuineness  of  the  signature  [Tay- 
lor Will  Case,  10  Abb.  Pr.  N.  S. 
300],  or  where  the  declarations  are 
offered  to  support  or  rebut  evi- 
dence of  his  ignorance  of  its  con- 
tents (Davies  v.  Rogers,  1  Houst. 
44,  Redf.  on  Wills,  567). 

Neither  the  fact  that  testator 
made  his  wishes  known  partly 
by  pantomine  and  partly  hi  answer 
to  questions,  nor  the  circumstance 
that  the  mechanical  work  of  affix- 
ing his  name  to  the  will  was  per- 
formed by  another,  serves  to  in- 
validate the  instrument.  In  re 
Clark,  170  Cal.  418,  149  Pac.  Rep. 
828. 

63  Lake  v.  Ranney,  33  Barb.  49, 
and  cases  cited;  see  Harrison  v. 
Rowan,  3  Wash.  C.  Ct.  580; 
Comstock  v.  Hadlyme,  8  Conn. 
254. 

Where  a  will  is  executed  ac- 
cording to  legal  formalities,  it  will 
be  presumed,  in  the  absence  of  evi- 
dence to  the  contrary,  that  it  was 
read  by  the  testator,  or  that  he 
otherwise  became  acquainted  with 
its  provisions.  Bailey  v.  Bee,  73 
W.  Va.  286,  80  S.  E.  Rep.  454. 


350  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

where  the  testator  is  shown  to  be  unable  to  read,  there  should 
be  some  evidence  that  he  knew  its  contents.  The  will  cannot 
be  shown  to  be  void  by  parol  proof  that  dispositions  which 
the  testator  directed  to  be  inserted  were  omitted  by  the  mis- 
take of  the  scrivener.  For  the  purpose  of  determining  the 
genuineness  of  the  will,  the  circumstances  attending  its 
production,  the  history  of  its  custody,  and  the  declarations 
of  its  custodian  made  during  the  custody,  are  competent.64 
The  genuineness  of  signatures  may  be  proved  by  the  opinion 
of  any  witness  who  has  at  any  time  seen  the  person  write, 
or  who  has  received  documents  purporting  to  be  written  by 
the  person,  in  answer  to  documents  written  by  himself,  or 
under  his  authority,  and  addressed  to  the  person,  or  to  whom, 
in  the  ordinary  course  of  business,  documents  purporting 
to  be  written  by  the  person  have  been  habitually  submitted.65 
But  it  cannot  be  proved  by  the  opinion  of  an  expert,  unless 
he  is  acquainted  with  the  handwriting,  nor  can  his  opinion 
be  received  on  a  comparison  of  handwritings,  unless  the 
signature  produced  is  attached  to  papers  otherwise  in  ev- 
idence, and  material  to  the  issue,  or  admitted  to  be  genuine.66 
Photographic  copies  of  a  signature  are  not  admissible  to  aid 
the  expert.67 

64Boylan      ads.       Meeker,      4  tested  it.    Reynolds  v.  Sevier,  165 

Butcher,    275,    s.    P.,    Nexsen  v.  Ky.  158,  176  S.  W.  Rep.  961,  L. 

Nexsen,  3  Abb.  Ct.  App.  Dec.  360.  R.  A.  1915,  E.  593. 

Subject,  however,   to  the  profes-  M  This  is  the  rule  in  the  Federal 

sional  privilege,  if  any  exist.    Tay-  courts,  except  where  those  courts 

lor  Will  Case,  10  Abb.  Pr.  N.  S.  follow  the  State  statute.    Stokes  r. 

300.     See  N.  Y.  Code  Civ.  Pro.,  United  States,  157  U.  S.  187.    For 

§§  833-836;  3  Wall.  176,  192,  Redf.  the  New  York  rule  see  N.  Y.  Code 

SUIT.  Pr.  101.  Civ.  Pro.,  §  961,  d. 

•5  See  ch.  21  Paragraphs  6-15.  Documents  otherwise  irrelevant 

Where  an  attesting  witness  is  to  a  probate  cause  may  be  intro- 

unable  to  identify  his  handwriting  duced  in  evidence  for  the  purpose 

on  a  will,  because  his  eyesight  has  of     comparison     of     handwriting, 

failed,   it  is  competent  for  other  Matter  of  Smart,  84  N.  Y.  Misc. 

witnesses  to  identify  the  will  as  336, 145  N.  Y.  Supp.  838. 

the  one  signed  by  the  attesting  67  Taylor  Will  Case,  10  Abb.  Pr. 

witness  and  to  prove  that  he  at-  N.  S.  300. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


351 


62.  Testamentary  Capacity.68 

The  burden  of  proving  to  the  satisfaction  of  the  court 
that  the  paper  in  question  does  declare  the  will  of  the  de- 
ceased, and  that  the  supposed  testator  was,  at  the  time  of 
making  and  publishing  the  document  propounded  as  his 
will,  of  sound  and  disposing  mind  and  memory,69  is  on  the 
party  undertaking  to  establish  the  will;  and  this  burden  is 
not  shifted  during  the  progress  of  the  trial,  and  is  not  re- 
moved by  proof  of  the  formal  execution  of  the  will  and  the 
testamentary  competency,  by  the  attesting  witnesses,  but 
remains  with  the  party  setting  up  the  will.70  The  ordinary 


68  As  to  age,  see  paragraphs  27- 
30. 

69  For  the  test  in  case  of  delusion, 
see  Banks  v.  Goodfellow,  L.  R.  5 
Q.  B.  549;  Van  Guysling  v.  Van 
Keuren,   35  N.   Y.   70;   Clapp  v. 
Fullerton,  34  Id.  190;  Bonard  Will 
Case,    16    Abb.    Pr.    N.    S.    128; 
Dunham's  Appeal,  27  Conn.  192; 
Boughton  v.  Knight,  L.  R.  Prob.  & 
D.  64,  68;  Duffield  v.  Morris,  2 
Harr.    (Del.)    375;   Stackhouse   v. 
Horton,  15  N.  J.  Eq.  202;  Redf. 
Am.  Cas.  on  L.  of  Wills,  384.    For 
the  test  in  case  of  imbecility  or 
mental  weakness,  see  Delafield  v. 
Parish,  25  N.  Y.  9,  27,  29,  over- 
ruling   Stewart   v.    Lispenard,    26 
Wend.  225.    Whether  it  be  deemed 
that   a   will   requires   greater   ca- 
pacity than   a   contract    (as  said 
in    Boughton    v.    Knight,    above, 
which  is  usually  sound  as  to  mere 
question  of  mental  capacity),  or 
that   a   contract    requires   greater 
capacity  than  a  will   (as  said  in 
Harrison  ?;.  Rowan,  3  Wash.  C.  Ct. 
586;  Kinne  r.  Kinne,  9  Conn.  102; 
Converse  v.  Converse,  21  Vt.  168, 
which  may  be  true  on  a  question 


of  weakness  in  case  of  undue  in- 
fluence), the  question  whether 
testator  had  capacity  for  contracts 
or  other  transactions,  civil  or 
criminal,  is  not  relevant,  except  so 
far  as  the  facts  adduced  show 
testamentary  incapacity  or  sus- 
ceptibility to  undue  influence.  See 
Dew  v.  Clark,  1  Hagg.  EC.  311. 

The  testator  must  be  possessed 
of  a  sound  and  disposing  mind  and 
memory.  The  question  is  not  so 
much  what  was  the  degree  of 
memory  possessed  by  the  testator, 
as  had  he  a  disposing  memory? 
Was  he  capable  of  recollecting  the 
property  he  was  about  to  be- 
queath, the  manner  of  distributing 
it,  and  the  object  of  his  bounty? 
Were  his  mind  and  memory  suf- 
ficiently sound  to  enable  him  to 
know  and  to  understand  the  busi- 
ness in  which  he  was  engaged  at 
the  time  when  he  executed  his  will? 
In  re  Craft,  85  N.  J.  Eq.  125,  94 
Atl.  Rep.  606. 

70 Delafield  v.  Parish  (above); 
Redf.  Am.  Cas.  on  L.  of  Wills, 
4.  Contra,  Id.  28,  and  Higgins  t?. 
Carlton,  28  Md.  115,  and  cases 


352 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


presumption  of  sanity  does  not  alone  suffice  to  dispense  with 
all  evidence  on  the  point.  Slight  evidence,  however,  is 
sufficient  to  go  to  the  jury.71  After  the  formal  and  usually 


cited  below.  As  to  the  right  to 
open  and  close,  see  Brooks  v. 
Barrett,  7  Pick.  94;  Comstock  v. 
Hadlyme,  8  Conn.  254;  Taylor  Will 
Case,  10  Abb.  Pr.  N.  S.  300.  One 
who  challenges  the  mental  ca- 
pacity of  a  testator,  or  donor,  has 
the  burden  of  establishing  the  ac- 
sence  of  that  particular  capacity  in 
issue.  Teegarden  v.  Lewis,  145 
Ind.  98,  40  N.  E.  Rep.  1047,  44 
N.  E.  Rep.  9.  Upon  proving  the 
formal  execution  of  a  will,  includ- 
ing the  legal  attestation  and  sub- 
scription by  the  witness,  presump- 
tion of  testamentary  capacity 
arises.  Kaufman  v.  Caughman,  49 
S.  C.  159,  27  S.  E.  Rep.  16.  Where 
the  making  and  executing  of  an 
alleged  will  are  not  denied,  testa- 
mentary capacity  and  the  absence 
of  undue  influence  will  be  presumed, 
and  such  presumption  will  stand 
until  overcome  by  the  weight  of 
testimony.  Messner  v.  Elliott, 
184  Pa.  St.  41,  39  Atl.  Rep.  46. 
The  law  presumes  that  every  per- 
son possesses  a  sound  and  disposing 
mind,  and  the  burden  is  upon  the 
contestant  to  establish  by  a  pre- 
ponderance of  evidence  that  the 
testator  did  not  at  the  time  of  mak- 
ing the  will  possess  a  mind  suf- 
ficiently clear  and  strong  to  be  able 
to  know  and  understand  the  nature 
of  the  testamentary  act,  to  know 
and  remember  the  character  and 
extent  of  the  property  disposed  of, 
and  the  manner  in  which  and  the 
persons  to  whom  it  is  desired  to 


distribute  it.  In  re  Wilson,  117 
Cal.  262,  49  Pac.  Rep.  172,  711. 
Where,  hi  the  trial  of  an  issue  of 
devistavit  vel  non,  the  sanity  of  the 
testator  is  impeached,  the  burden 
of  proof  is  upon  the  caveators.  In 
re  Burns'  Will,  121  N.  C.  336, 
28  S.  E.  Rep.  519.  "The  meaning 
of  the  complaint  charging  unsound- 
ness  of  mind  being  a  charge  of 
testamentary  incapacity  under  the 
statute,  and  the  burden  of  that 
charge  being  on  the  plaintiff,  it 
follows  as  an  unavoidable  conclu- 
sion that  the  plaintiff  cannot  stop 
short  of  proof  of  the  testamentary 
incapacity  he  has  alleged,  and  de- 
mand a  verdict.  The  failure  of  the 
defendant  to  go  forward  and  dis- 
prove the  allegations  of  the  com- 
plaint left  unproven  by  the  plain- 
tiff cannot  entitle  the  plaintiff  to  a 
verdict  unless  testamentary  in- 
capacity is  presumed,  and  that, 
we  have  seen,  is  not  presumed,  but 
the  direct  contrary  is  presumed." 
Blough  v.  Parry,  144  Ind.  463,  491, 
40  X.  E.  Rep.  70, 43  N.  E.  Rep.  560. 

The  proponent  of  a  will  must 
prove  by  a  preponderance  of  evi- 
dence that  the  testator  was  of 
sound  mind.  Turner  v.  Butler, 
253  Mo.  202, 161  S.  W.  Rep.  74"i. 

"  Id.;  and  1  Wins,  on  Ex'rs,  6th 
Am.  ed.  24-30,  and  notes  reviewing 
conflicting  cases. 

There  is  a  presumption  that  the 
testator  possessed  testamentary 
capacity  and  the  burden  of  proof 
is  on  him  who  alleges  insufficiency 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


353 


slight  evidence  of  mental  capacity  has  been  given,  if  evidence 
to  the  contrary  is  adduced  by  those  resisting  the  will,  it  is 
in  the  discretion  of  the  court,  if  not  a  matter  of  right,  that 
the  party  alleging  the  will  may  give  cumulative  evidence  of 
capacity,  etc.,  in  rebuttal.72  Evidence  that  incapacity  of  a 
continuing  nature  previously  existed  (within  reasonable 
limit  of  time),  is  sufficient  to  raise  a  presumption  of  its 
existence  at  the  time  of  execution,  which  must  be  rebutted 
by  affirmative  evidence.73  Evidence  of  the  existence  of  such 
incapacity,  at  a  tune  subsequent  to  the  execution  of  the  will, 
is  competent  in  case  of  idiocy,  and  is  competent  in  other 
cases  if  sufficiently  near  in  point  of  time  to  raise  a  presump- 
tion (in  connection  with  other  evidence,  and  when  the  na- 
ture of  the  defect  is  considered)  that  it  existed  at  the  tune 
of  execution;  but  is  not  competent  except  on  that  ground.74 


of  mental  capacity.  Philpott  v. 
Jones,  164  Iowa,  730,  146  N.  W. 
Rep.  859. 

The  legal  presumption  is  that  a 
testator  was  sane  when  he  exe- 
cuted his  will.  In  re  Craft,  85 
N.  J.  L.  125,  94  Atl.  Rep.  606. 
In  re  Martin,  170  Cal.  657,  151 
Pac.  Rep.  138. 

72  Taylor  Will  Case,  10  Abb.  Pr. 
N.  S.  300;  and  see  Redf.  Am.  Cas. 
on  L.  of  Wills,  32. 

All  insane  delusions  do  not  render 
one  incapable  of  making  a  will. 
Merely  showing  that  a  testator 
had  delusions  is  not  sufficient. 
It  must  appear  that  his  testamen- 
tary act  was  influenced  by  the  de- 
lusion. Zinkula  v.  Zinkula,  171 
Iowa,  287,  154  N.  W.  Rep.  158. 

It  is  only  such  a  delusion  or  con- 
ception as  springs  up  spontaneously 
in  the  mind  of  a  testator,  and  is  not 
the  result  of  extrinsic  evidence  of 
any  kind  that  can  be  regarded  as 


furnishing  evidence  that  his  mind 
is  diseased  or  unsound.  In  re 
Diggins,  76  Ore.  341,  149  Pac. 
Rep.  73. 

73  See  Clark  v.  Fisher,  1  Paige, 
171,  and  cases  cited;  and  Smith  v. 
Tebbett,  L.  R.  1  P.  &  D.  398. 

Proof  that  testator  was  perma- 
nently mentally  incapacitated  and 
that  his  affliction  was  progressive 
raises  the  presumption  of  incapac- 
ity at  the  time  of  making  the  will. 
Byrne  v.  Fulkerson,  254  Mo.  97, 
162  S.  W.  Rep.  171. 

When  insanity  is  once  established 
the  burden  rests  on  the  proponent 
to  establish  testamentary  capacity, 
and  if  the  whole  evidence  leaves 
the  issue  in  doubt,  the  will  cannot 
be  admitted  to  probate.  Matter  of 
Giauque,  83  N.  Y.  Misc.  684,  145 
N.  Y.  Supp.  364;  Matter  of  Martin, 
82  N.  Y.  Misc.  574, 144  N.  Y.  Supp. 
174. 

74  Stevens  0.  Van  Cleve,  4  Wash. 


354 


ACTIONS   BY   AND   AGAINST   HEIKS   AND 


A  general  or  continuing  insanity  having  been  shown 
within  a  reasonable  tune  prior  to  the  act,  the  burden  is 
thrown  upon  the  other  party  to  show  a  lucid  interval  at  the 
time  of  the  act.75  Evidence  of  cessation  of  the  symptoms  is 
not  enough,  but  there  must  be  evidence  of  sufficient  restora- 
tion to  act  intelligently  and  freely.76  The  reasonableness  and 
good  sense  of  the  will  itself,77  and  the  mode  in  which  it  was 
executed,78  are  competent  evidence  of  the  existence  of  a  lucid 
interval  when  it  was  made.  In  the  case  of  drunkenness,  the 
evidence  must  be  directed  to  the  particular  moment,  so  as 
to  show  that  the  testator  was  so  excited  by  liquor,  or  so  con- 


C.  Ct.  262.  Compare  Terry  v. 
Buffington,  11  Ga.  342. 

Even  if  a  person  was  insane  and 
had  been  so  adjudged,  his  will  is 
valid  if  made  during  a  lucid  inter- 
val. Matter  of  McDermott,  154 
N.  Y.  Supp.  923,  90  Misc.  526; 
In  re  Martin,  170  Cal.  657,  151 
Pac.  Rep.  138. 

76  Dicken  v.  Johnson,  7  Geo.  '488, 
and  cases  cited;  In  re  Hoope's 
Estate,  174  Perm.  St.  373,  34  Atl. 
Rep.  603. 

When  insanity  is  once  estab- 
lished the  burden  rests  very  heav- 
ily on  the  proponent  to  establish 
capacity  to  make  a  will.  Matter  of 
Giauque,  83  N.  Y.  Misc.  684,  145 
N.  Y.  Supp.  364. 

The  mere  fact  that  some  weeks 
before  and  some  weeks  after  the 
execution  of  the  will  the  testator 
was  not  in  proper  mental  condition 
to  execute  a  will  does  not  militate 
against  the  proof  of  his  actual  ca- 
pacity at  the  very  time  he  executed 
the  will.  Lum  v.  Lasch,  93  Miss. 
81,  46  So.  Rep.  559. 

76  Lucas  v.  Parsons,  27  Ga.  593; 
Boyd  v.  Eby,  8  Watts  (Penn.),  66; 


Ex  parte  Holyland,  11  Ves.  10.  In- 
sanity cannot  be  shown  by  reputa- 
tion in  the  family.  People  v. 
Koerner,  154  N.  Y.  355,  48  N.  E. 
Rep.  730. 

77  Cartwright  v.  Cartwright,  1 
Phillim.  90,  as  qualified  in  Banks  v . 
Goodfellow,  L.  R.  5  Q.  B.  549,  and 
Gombault  v.  Pub.  Adm'r,  4  Bradf. 
226.  The  contestants  of  the  will 
may  introduce  evidence  of  the 
manner  in  which  the  decedent  ac- 
quired the  property  disposed  of  in 
the  will,  as  bearing  in  some  de- 
gree, however  remotely,  on  the 
question  of  testamentary  capacity. 
In  re  Wilson,  117  Cal.  262,  49  Pac. 
Rep.  172,  711. 

A  man  has  a  right  to  dispose  of 
his  property  in  any  way  he  sees 
fit.  He  may  give  it  to  whom  he 
pleases,  even  in  disregard  of  his 
own  blood  relatives,  if  he  is  men- 
tally competent  and  knows  what 
he  is  doing,  and  is  not  unduly  in- 
fluenced. Porter  r.  La  Rue,  192 
Mich.  477,  158  N.  W.  Rep.  851. 

"Hall  v.  Warren,  9  Ves.  605, 
s.  c.,  Swell's  Cases,  702. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


355 


ducted  himself  during  the  act,  as  to  be  at  the  moment  legally 
disqualified;79  or  there  must  be  evidence  of  confirmed  de- 
rangement caused  by  habitual  indulgence.80  The  fact  of 
being  deaf  and  dumb  does  not  now  raise  a  legal  presumption 
of  mental  incapacity; 81  but  necessitates  stricter  proof  of 
open  dealing  and  intelligent  assent.  Old  age  alone  does 
not  incapacitate.82 

63.  Conduct  and  Declarations  of  Testator. 

On  the  question  of  mental  condition,  whether  raised  as  to 
unsoundness  or  undue  influence,  the  conduct  and  declarations 
of  the  testator,  both  before  and  after  execution,  are  com- 
petent to  show  capacity  or  incapacity,  if  they  tend  to  show 
its  existence  at  the  time  of  execution,83  but  not  otherwise.84 


79  Peck  v.  Gary,  27  N.  Y.  9. 

80  Gardner  v.  Gardner,  22  Wend. 
526. 

81  Christmas  v.  Mitchell,  3  Ired. 
Eq.  535,  541. 

82  Collins  v.  Townley,  21  N.  J. 
Eq.  353;  Matter  of  Neil,  153  N.  Y. 
Supp.   647,  90  Misc.   537;  In  re 
Clark,  170  Cal.  418,  149  Pac.  Rep. 
828.    Testimony  that  the  testator 
was  a  young  man  of  average  in- 
telligence  is    competent   to   show 
testamentary  capacity.    In  re  Mer- 
riman's   Appeal,    108    Mich.    454, 
66  N.  W.  Rep.  372.    The  question 
is  one  of  fact.    Harp  v.  Parr,  168 
111.  459,  48  N.  E.  Rep.  113. 

No  presumption  of  incapacity 
arises  because  the  testator  was  ad- 
vanced in  years.  In  re  Carpenter, 
145  N.  Y.  Supp.  365;  Matter  of 


Brower,  112  N.  Y.  App.  Div. 
370,  98  N.  Y.  Supp.  438;  Horn  v. 
Pullman,  72  N.  Y.  269;  Deering 
v.  Adams,  37  Me.  264;  Campbell  v. 
Campbell,  130  111.  466,  22  N.  E. 
Rep.  620,  6  L.  R.  A.  167. 

The  fact  that  the  decedent  was 
old,  slovenly  in 'dress,  and  given 
to  peculiarities  in  speech  and  habit 
which,  at  times,  were  such  as  to 
impress  witnesses  as  irrational,  is 
not  sufficient  to  render  a  testa- 
mentary disposition  of  his  property 
invalid.  Matter  of  McDermott, 
154  N.  Y.  Supp.  923,  90  Misc. 
526;  Matter  of  Schober,  154  N.  Y. 
Supp.  309,  90  Misc.  230. 

83  Boylan  ads.  Meeker,  4 
Butcher,  274. 

The  tune  when  a  contested  will 
was  made  is  always  the  time  of 


84  Kinne  v.  Kinne,  9  Conn. 
104. 

Testamentary  capacity  consists 
in  the  possession  by  the  testator  at 
the  time  of  making  his  will  of  a 


full  understanding  of  the  nature 
of  the  business  in  which  he  is  en- 
gaged, a  recollection  of  the  prop- 
erty of  which  he  intends  to  dis- 
pose, and  the  persons  to  whom  he 


356 


ACTIONS   BY   AND   AGAINST   HEIRS  AND 


A  sudden  change  to  eccentric  and  peculiar  habits  is  cogent 
evidence  of  insanity.85  Suicide  is  not  conclusive  evidence  of 
insanity.86  The  testator's  correspondence,  his  manner  of 
conducting  business,  etc.,  are  competent.87  The  fact  that 


primary  importance  in  estimating 
the  mental  capacity  of  the  testator. 
Evidence  of  capacity  or  want  of 
capacity  before  or  afterwards 
merely  aids  the  investigation  of  the 
subject  of  testamentary  capacity  at 
the  time  the  will  was  executed. 
Wisner  v.  Chandler,  95  Kan.  36, 
147  Pac.  Rep.  849. 

A  person  who  is  unable  to  under- 
stand the  nature  and  importance 
of  the  business  he  is  transacting 
without  being  prompted,  has  not 
the  capacity  to  make  a  will. 
Schleiderer  v.  Gergen,  129  Minn. 
248,  152  N.  W.  Rep.  541. 

85  Lucas  v.  Parsons,  27  Ga.  593. 

The  fact  that  a  testator  was  a 
man  abnormal  in  his  tastes  and 
habits,  a  quiet  drinker,  eccentric 
as  to  his  walk,  carriage  and  be- 
havior at  table,  high  pitched  as  to 
voice,  possessed  of  collections  of  in- 
decent pictures,  degenerate  in  his 
desires  and  inclinations,  was  not 
sufficient  to  show  his  unfitness  to 
make  a  will  especially  where  it  af- 
firmatively appeared  that  up  to 
the  very  time  of  his  death  he  had 
transacted  his  affairs  which  in- 
volved the  management  of  a  large 
estate.  In  re  Smith,  250  Pa.  67, 
95  Atl.  Rep.  338. 

88  Brooks  v.  Barrett,  7  Pick.  94; 


and  see  Burrows  v.  Burrows,  1 
Hagg.  109, 146. 

The  mere  fact  that  the  testa- 
trix had  taken  poison  with  sui- 
cidal intent  does  not  of  itself  war- 
rant the  deduction  that  her  mind 
was  unsound,  or  that  she  lacked 
testamentary  capacity  at  the  time 
of  making  her  will.  Roche  v. 
Nason,  185  N.  Y.  128,  77  N.  E. 
Rep.  1007;  Matter  of  Holmberg,  83 
N.  Y.  Misc.  245,  145  N.  Y.  Supp. 
846. 

The  fact  that  an  unmarried  man 
committed  suicide,  that  he  willed 
his  property  away  from  his  aged 
mother,  and  his  brothers  from 
whom  he  had  not  been  estranged, 
were  proper  to  be  considered  by  a 
jury  on  the  issue  of  testamentary 
capacity.  In  re  Wasserman,  170 
Cal.  101,  148  Pac.  Rep.  931. 

87  Harper  v.  Harper,  1  N.  Y. 
Supm.  Ct.  (T.  &  C.)  351,  s.  P., 
United  States  v.  Sharp,  1  Pet.  C. 
Ct.  118;  Irish  v.  Smith,  8  Serg.  & 
R.  578.  The  facts  as  to  the  busi- 
ness transactions  of  the  testator 
are  of  much  more  value  than  the 
opinions  of  witnesses.  Messner  v. 
Elliott,  184  Penn.  St.  41,  39  Atl. 
Rep.  46. 

Less  mental  capacity  is  required 
to  execute  a  valid  will  than  any 


means  to  give  it,  and  also  an  un- 
derstanding of  the  manner  in 
which  he  in  fact  disposes  of  it,  and 
of  the  relative  claims  of  the  differ- 


ent persons  who  are,  or  should  be, 
the  objects  of  his  bounty.  Brown 
v.  Fidelity  Trust  Co.,  126  Md.  175, 
94  Atl.  Rep.  523. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


357 


others  dealt  with  him  as  sound  or  unsound  of  mind,  is  com- 
petent when  adduced  merely  to  lay  a  foundation  for  ev- 
idence of  the  manner  hi  which  he  received  such  treatment, 
but  not  otherwise.88  And  evidence  of  how  the  testator  acted, 
when  his  mental  condition  was  spoken  of  in  his  presence, 
is  admissible.89 


other  legal  instrument.  One  may 
not  have  capacity  to  transact 
business  and  yet  make  a  valid  will. 
Ability  to  transact  ordinary  busi- 
ness is  strong  evidence  of  testa- 
mentary capacity.  Matter  of  Hal- 
bert,  15  N.  Y.  Misc.  308,  37  N.  Y. 
Supp.  757;  Matter  of  Seagrist, 
1  N.  Y.  App.  Div.  615,  37  N.  Y. 
Supp.  496;  Matter  of  Armstrong, 
55  N.  Y.  Misc.  487,  106  N.  Y. 
Supp.  671;  Matter  of  Browning, 
80  N.  Y.  Misc.  619,  142  N.  Y. 
Supp.  683;  In  re  Carpenter,  145 
N.  Y.  Supp.  365;  Matter  of  Bird- 
sail,  13  N.  Y.  Supp.  421,  2  Con- 
noly's  Surr.  433. 

"There  can  be  no  stronger 
evidence  of  the  soundness  of  a 
man's  mind  and  memory  than 
clear  convincing  proof  that  he  has 
ability  to  intelligently,  accurately 
and  profitably  conduct  his  own 
business  affairs.  Without  proof 
of  undue  influence  or  insane  de- 
lusions, such  evidence  must  con- 
vince any  reasonable  and  unprej- 
udiced mind  of  the  competency 
of  the  testator  to  execute  a  valid 
will."  Walker  v.  Struthers,  273 
111.  387,  112  N.  E.  Rep.  961. 

88  Thus  letters  written  to  him, 
even  by  persons  since  deceased, 
are  not  competent  evidence  as  to 
his  mental  soundness,  unless  his 
conduct  in  reference  thereto  is 


shown.  The  fact  that  they  were 
found  in  his  possession  is  not 
enough.  Wright  v.  Tatham,  5 
Clark  &  F.  670,  7  Ad.  &  E.  313. 
But  a  witness  may  testify  that  he 
was  told  by  the  wife  in  the  hus- 
band's presence  that  he  did  not 
attend  to  business,  he  was  incap- 
able,— and  that  he  said  nothing. 
Irish  v.  Smith,  8  Serg.  &  R.  578. 

The  fact  that  shortly  before  his 
death  the  testator  sent  drafts  of 
$500  each  to  each  of  his  sons,  the 
contestants,  and  they  kept  the 
money,  is  competent  to  prove  as 
against  them  that  he  was  able  to 
manage  his  affairs.  Rowcliffe  v. 
Belson,  261  111.  566,  104  N.  E. 
Rep.  268,  Ann.  Cas.  1915,  A.  359. 

89  In  re  Will  of  Fenton,  97  Iowa, 
192,  66  N.  W.  Rep.  997.  Conver- 
sations of  those  present  at  the  exe- 
cution of  a  will  by  a  third  person, 
in  reference  to  her  physical  condi- 
tion, are  admissible  in  evidence 
as  part  of  the  res  gestce,  in  a  pro- 
ceeding to  contest  the  will.  Kos- 
telecky  v.  Scherhart,  99  Iowa,  120, 
68  N.  W.  Rep.  591. 

In  considering  the  testamentary 
capacity  of  a  testator,  it  is  proper 
that  his  life,  surroundings,  relation- 
ships and  friendships  should  be 
the  subject  of  inquiry.  Matter  of 
McDermott,  154  N.  Y.  Supp.  923, 
90  Misc.  526. 


358 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


His  declarations,  if  not  part  of  the  res  gestce  of  execution, 
must  be  offered  not  as  his  statement  of  facts  of  fraud  or 
undue  influence,  for  in  this  respect  they  are  hearsay  and 
incompetent,  but  as  statements  which,  independent  of 
their  truth  or  falsity,  disclose  his  state  of  mind,  strength  or 
weakness  of  will,  independence  or  infirmity  of  purpose, 
capacity  or  imbecility.  What  the  testator  said,  the  law 
does  not  credit,  for  it  is  unsworn;  but  the  fact  that  he  said 
it,  the  law  receives,  because  to  ascertain  his  state  of  mind  we 
must  hear  how  he  talked,  and  read  what  he  wrote.  His 
declaration  is  not  evidence  of  the  fact  declared  but  it  is 
evidence  of  the  state  of  mind  from  which  the  declaration 
proceeded.90  With  this  purpose,  great  latitude  is  allowed 
in  the  admission  of  such  evidence.91  The  rule  allows  previous 
as  well  as  subsequent  declarations  as  to  testamentary  inten- 
tions to  be  received  in  evidence.92  The  weight  of  the  declara- 


90  Waterman  v.  Whitney,  11  N. 
Y.  157;  Marx  v.  McGlynn,  88  N.  Y. 
357;   Griffith  v.   Diffenderffer,   50 
Md.  466;  Boylan  v.   Meeker,  28 
N.  J.  L.  274;  In  re  Calkins,  112 
Cal.  296,  44  Pac.  Rep.  577;  In  re 
Merriman's    Appeal,    108    Mich. 
454,  66  N.  W.  Rep.  372;  Doherty 
v.  Gilmere,  136  Mo.  414,  37  S.  W. 
Rep.   1127;  In  re  Kaufman,   117 
Cal.  288,  49  Pac.  Rep.  192;  Hill 
v.  Bahrns,  158  111.  314,  41  N.  E. 
Rep.  912. 

The  declaration  of  the  testator 
at  the  time  of  execution  as  to  why 
he  is  disinheriting  his  daughter  is 
admissible  on  the  issue  of  testa- 
mentary capacity  under  Civ.  Code, 
1910,  §  2841.  Gordon  v.  Gilmore, 
141  Ga.  347,  80  S.  E.  Rep.  1007. 

91  Robinson  v.  Adams,   62  Me. 
369,  s.  c.,  16  Am.  Rep.  473.    The 
declarations  of  a  testator,  on  the 
subject  of  making  wills,  are  com- 


petent on  a  contest  of  his  will  on 
the  ground  of  mental  incapacity. 
Bower  v.  Bower,  142  Ind.  194,  41 
N.  E.  Rep.  523.  Declarations  of  a 
testator  that  he  had  treated  all 
his  children  alike,  are  inadmis- 
sible to  show  mental  incapacity 
or  undue  influence,  in  case  of  a  later 
will.  Hill  v.  Bahrns,  158  111.  314, 
41  N.  E.  Rep.  912. 

92Tunison  v.  Tunison,  4  Bradf. 
138;  Dennison's  Appeal,  29  Conn. 
399;  Den  v.  Vancleave,  5  N.  J.  Law 
(2  South.)  589. 

Even  the  draft  of  a  former  will 
more  or  less  similar,  directed  or 
approved,  though  not  executed  by 
the  testator,  is  competent.  Thorn- 
ton v.  Thornton,  39  Vt.  122,  s.  c.,  6 
Am.  L.  Reg.  N.  S.  341. 

Conversations  with  a  testator 
prior  to  the  execution  of  the  will 
are  competent  on  the  subject  of 
mental  condition.  Garrus  v.  Davis, 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


359 


tions  depends  on  their  proximity  in  point  of  time  to  the  act, 
and  on  whether  they  were  before  or  after  it.  Declarations 
before  the  act  are  more  pregnant  of  presumption  than  those 
made  after  it;  and  a  state  of  weakness  shown  to  exist  before 
the  act,  being  presumed  to  continue,  affords  more  influential 
evidence  than  if  only  shown  to  exist  after  the  act,  because  it 
is  possible  that  the  weakness  might  have  intervened.93  Un- 
reasonableness of  a  will  is,  alone,  no  evidence  of  incapacity; 94 


234  111.  326,  84  N.  E.  Rep. 
924. 

Prior  declarations  of  the  testa- 
tor or  prior  wills  cannot  be  offered 
for  the  purpose  of  varying  or  con- 
trolling the  operation  of  the  con- 
tested will.  Floto  v.  Floto,  233 
111.  605,  84  N.  E.  Rep.  712. 

Declarations  and  conduct  of  a 
testator  after  the  will  is  made  are 
admissible  to  prove  lack  of  testa- 
mentary capacity,  on  the  theory 
that  the  subsequent  condition 
may  be  presumed  to  have  existed 
when  the  will  was  made.  Leffing- 
well  v.  Bettinghouse,  151  Mich. 
513,  115  N.  W.  Rep.  731. 

Transactions  within  a  reason- 
able time  before  and  after  exe- 
cution are  admissible.  McAllister 
».  Rowland,  124  Minn.  27,  144 
N.  E.  Rep.  412,  Ann.  Gas.  1915, 
B.  1006;  Byrne  ».  Fulkerson, 
254  Mo.  97,  162  S.  W.  Rep. 
171. 

Where  mental  capacity  is  the 
issue,  evidence  showing  the  con- 
dition of  the  testator  both  before 
and  after  executing  the  will  is 
admissible  in  order  that  the  jury 
may  find  what  his  condition  was  at 
the  time  of  execution.  Harris  v. 
Hipsley,  122  Md.  418,  89  Atl.  Rep. 
852. 


83  See  1  Redf.  on  Wills,  136-163, 
548. 

94Munday  v.  Taylor,  7  Bush 
(Ky.),  491;  Ross  v.  Christman,  1 
Ired.  L.  209. 

A  revoked  will,  executed  three 
years  prior  to  the  last  will,  and  at 
a  time  when  the  testator  was  con- 
cededly  of  sound  mind,  is  admis- 
sible for  purposes  of  comparison 
with  the  last  will.  Whisner  v. 
Whisner,  122  Md.  195,  89  Atl. 
Rep.  393. 

Where  testamentary  capacity  is 
in  issue,  the  reasonableness  or  un- 
reasonableness of  the  will  is  a 
legitimate  subject  of  consideration 
in  determining  that  issue.  Penn 
v.  Thurman,  144  Ga.  67,  86  S.  E. 
Rep.  233. 

A  testator  has  a  right  to  make  an 
unjust,  or  an  unreasonable,  or 
even  a  cruel  will,  and  a  will  may 
not  be  legally  set  aside  because  of 
the  mere  fact  that  it  is  such  a  will. 
Where,  however,  a  man  wills  most 
of  his  property  away  from  his  wife 
or  children  with  whom  he  has  lived 
on  apparently  friendly  terms,  that 
fact  has  weight  in  determining  the 
mental  condition  of  the  testator. 
In  re  Martin,  170  Gal.  657,  151 
Pac.  Rep.  138. 

Where  one  leaves  all  his  property 


360 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


but  in  connection  with  evidence  of  mental  unsoundness,  or 
of  weakness  and  influence,  or  intoxication,  it  is  to  be  con- 
sidered in  corroboration  or  rebuttal  of  those  allegations; 
and,  in  such  case,  evidence  of  the  situation  of  the  family  and 
property  is  competent  for  the  purpose  of  throwing  light  upon 
the  reasonableness  of  the  will.95  In  proportion  as  the  will 
departs  from  reasonable  and  natural  division  of  the  estate, 
evidence  of  mental  competency  and  evidence  to  rebut  cir- 


to  a  person  unrelated  to  him,  he 
lays  the  will  open  to  the  criticism 
that  it  is  an  unnatural  one;  but 
where  the  evidence  shows  an  ap- 
parent lack  of  intimacy  between 
the  testator  and  his  relatives  and 
a  seeming  lack  of  interest  on  their 
part  for  the  welfare  and  care  of 
him  hi  his  old  age  and  ill  health, 
very  little  weight  should  be  given 
to  the  contention  that  the  pro- 
visions are  unnatural  and  indicate 
a  lack  of  testamentary  capacity. 
Matter  of  McDermott,  154  N.  Y. 
Supp.  923. 90  Misc.  526. 

96  Per  WALWORTH,  Ch.,  Betts  v. 
Jackson,  6  Wend.  175.  Where 
proof  of  sanity  or  insanity  is  sub- 
mitted to  the  jury,  the  fact  that 
the  testator  disinherited  all  of  his 
children  save  one  to  whom  he  left 
all  his  property,  is  competent  evi- 
dence to  be  passed  upon  by  the 
jury  as  bearing  upon  the  capacity 
of  the  testator.  In  re  Burns' 
Will,  121  N.  C.  336,  28  S.  E.  Rep. 
519. 

The  relationship  of  the  bene- 
ficiaries, then*  pecuniary  condition, 
the  objects  of  the  testator's  bounty 
and  whether  any  of  them  might 
reasonably  be  omitted,  are  proper 
questions  to  look  into.  Bales  v. 


Bales,  164  Iowa,  257,  145  N.  W. 
Rep.  673;  Philpott  v.  Jones,  164 
Iowa,  730,  146  N.  W.  Rep.  859. 

A  wide  range  of  examination 
should  be  permitted  when  testa- 
mentary capacity  is  involved,  in 
order  that  all  facts  throwing  light 
on  the  question  may  be  before  the 
court.  Bramel  v.  Grain,  157  Ky. 
671,  163  S.  W.  Rep.  1125. 

A  person  desiring  to  make  a  will 
must  understand  the  nature  of  the 
act  and  its  effect.  He  must  under- 
stand the  nature,  situation  and  ex- 
tent of  the  property  he  has  to  dis- 
pose of,  and  the  claims  of  others 
upon  his  bounty,  and  he  must  fur- 
thermore he  able  to  hold  these 
things  in  mind  long  enough  to 
form  a  rational  judgment  concern- 
ing them.  Schleiderer  r.  Gergen, 
129  Minn.  248,  152  N.  W.  Rep. 
541. 

The  financial  condition  of  those 
having  claims  upon  a  testator's 
bounty  may  be  taken  into  con- 
sideration in  connection  with  the 
will  itself  in  determining  the  ques- 
tion of  mental  capacity,  if  it  ap- 
pears that  the  same  was  known  to 
the  testator.  O'Day  v.  Crabb, 
269  111.  123,  109  N.  E.  Rep. 
724. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


361 


cumstances  tending  to  show  undue  influence  becomes  nec- 
essary. 

64.  Opinions  as  to  Mental  Soundness. 

On  the  question  of  the  testator's  mental  capacity,  a 
Subscribing  witness  may  state  the  opinion  which,  at  the 
time  of  the  execution,  he  formed.96  It  is  not  necessary  that 
he  should  first  state  the  facts  upon  which  he  formed  this 
impression.97  The  fact  that  he  was  an  attesting  witness 
gives  the  right  to  ask  his  opinion.  All  the  facts  and  circum- 
stances seen  or  known  by  the  witness  at  the  time  may  be 
brought  out  on  direct  or  cross-examination ; 98  but  the  opin- 
ion is  not  excluded,  even  if  the  facts  engendering  it  have  been 
forgotten.99  An  Expert 1  may  testify  directly  as  to  the  mental 
capacity,  in  either  of  three  ways:  1.  If  he  had  adequate 
opportunities  of  personal  examination  of  the  testator,  he 
may  state  his  opinion  positively,  based  upon  his  personal 


96  Kaufman  v.  Caughman,  49 
S.  C.  159,  27  S.  E.  Rep.  16.  But 
the  testimony  of  a  witness  who 
has  attested  a  will  should  be 
weighed  and  considered  the  same 
as  that  of  any  other  witness.  The 
fact  that  he  is  an  attesting  witness, 
of  itself,  does  not  entitle  his  evi- 
dence upon  the  question  of  testa- 
mentary capacity  to  greater  weight 
than  it  would  otherwise  be  entitled 
to,  except  that  by  reason  of  his 
being  an  attesting  witness  the  law 
authorizes  him  to  give  his  opinion 
of  the  mental  capacity  of  the  tes- 
tator. Burney  v.  Torrey,  100  Ala. 
157,  46  Am.  St.  Rep.  33,  14  So. 
Rep.  685. 

Where  only  one  of  the  witnesses 
to  a  will  is  living,  and  testifies  to 
the  proper  execution  thereof,  it 
is  incumbent  under  the  Minnesota 
statutes  upon  the  proponent  to 


establish  prima  facie  the  sound 
mind  of  the  testator  at  the  time 
the  will  was  executed.  Bush  v. 
Hetherington,  132  Minn.  379,  157 
N.  W.  Rep.  505. 

"Robinson  v.  Adams,  62  Me. 
369,  s.  c.,  16  Am.  Rep.  473. 

"8  Id. 

*»Clapp  v.  FuUerton,  34  N.  Y. 
190. 

1  The  question  whether  the  wit- 
ness is  an  expert  is  not  in  the  dis- 
cretion of  the  judge,  but  is  a  ques- 
tion of  law  on  the  facts  concerning 
qualifications.  Baxter  v.  Abbott, 
7  Gray  (Mass.),  71.  An  educated, 
practicing  physician,  who  attended 
the  testator,  is  competent,  though 
not  specially  conversant  with  in- 
sanity; and,  in  a  case  of  gradual 
decay,  the  family  physician's  opin- 
ion is  more  cogent  than  that  of  a 
stranger  who  is  a  specialist.  Id. 


362 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


knowledge  of  the  facts,  but  not  upon  hearsay,2  nor  upon  con- 
flicting testimony  in  the  cause.3  2.  An  expert  who  has  heard 
all 4  the  testimony  adduced  upon  the  trial  bearing  on  the 
question,  may,  if  it  is  not  conflicting,  give  his  opinion  on  the 
question,  what  the  facts  sworn  to,  if  true,  would  indicate  as 
to  the  mental  condition.5  3.  An  expert  may  be  asked  what 
a  supposed  state  of  facts,  put  to  him  hypothetically,  but 
corresponding  in  details  to  the  facts  already  in  evidence, 
would  indicate  as  to  the  mental  condition.6  When  the  ev- 
idence involves  conflict,  the  opinion,  if  not  based  wholly 
on  personal  examination,  should  be  drawn  out  by  an  hy- 
pothetical question,  having  reference  to  the  facts  in  evidence 
on  one  side  or  both,  or  on  each  side  separately.7  The  expert- 
is  not  to  be  substituted  for  the  jury;  and  it  is  not  competent 
for  him  to  give  an  opinion  on  the  direct  question  of  the  testa- 
tor's capacity  to  make  a  will,8  but  so  long  as  the  question  is 


2  The    better    opinion    is    that, 
under  this  rule,  a  medical  witness 
must  give  the  facts  on  which  his 
opinion  is  founded,  in  connection 
with  his  opinion.     If  those  facts 
necessarily     include     information 
given  him  by  the  attendants  of  the 
patient,  his  opinion  is  not  com- 
petent, for  those  communications 
are  hearsay.     Heald  v.  Thing,  45 
Me.    396,    s.    P.,    Wetherbee    v. 
Wetherbee,  38  Vt.  454.    An  expert 
witness  cannot  give  an  opinion  as 
to  the  mental  condition  of  a  person, 
based   upon  statements   made   to 
him  by  such  person  not  in  evi- 
dence.    People  v.  Strait,   148  N. 
Y.  566,  42  N.  E.  Rep.  1045. 

3  Woodbury  v.   Obear,   7   Gray 
(Mass.),   467,   471. 

4  People  v.  Sanchez,  22  N.  Y. 
147,  154. 

5Redf.     Surr.     Pr.     103;     Peo- 
ple   v.    Lake,     12     N.     Y.     358; 


Commonw.  v.  Rogers,  7  Mete. 
500. 

It  seems  that  opinion  evidence 
is  of  small  probative  value  at  best. 
In  re  Craft,  85  N.  J.  Eq.  125,  94 
Atl.  Rep.  606. 

"Bonard's  Will,  16  Abb.  Pr. 
N.  S.  128. 

7  Woodbury   v.    Obear    (above). 
This  is  the  better  mode  of  inquiry 
than  referring   to   the   testimony. 
See  Dexter  v.  Hall,  15  Wall.  14, 
26. 

8  Hall  v.  Perry,  87  Me.  569,  33 
Atl.  Rep.  160. 

While  the  witness  may  be  an 
expert  upon  the  subject  of  mental 
and  nervous  diseases,  and  may 
give  his  opinion  in  answer  to  hy- 
pothetical questions  as  to  the  con- 
dition of  the  party's  mind  and 
whether  a  person  was  sane  or 
insane,  he  is  not  called  upon  to 
advise  the  court  and  jury  as  to  the 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


363 


framed  according  to  the  principles  here  stated  it  can  be  no 
objection  to  it  that  the  issue  and  the  other  evidence  is  such 
that  the  question  to  be  submitted  to  the  jury  must  call  for 
the  same  answer.  An  expert  may  also,  within  limits  not  very 
well  denned,  be  asked  general  questions  upon  the  laws  of 
mental  disorder,  decay,  or  imperfect  development,  relevant 
to  the  case,  or  upon  the  consistency  with  each  other  of  alleged 
symptoms,  for  the  purpose  of  enhancing  the  qualifications 
of  the  court  or  jury  to  weigh  and  apply  the  evidence;  and, 
on  cross-examination,  he  may  be  interrogated  generally  for 
the  purpose  of  testing  his  qualifications.9 

An  Ordinary  witness  (that  is  to  say,  any  witness  other  than 
an  expert  or  subscribing  witness)  may  testify  to  facts  and 
circumstances  within  his  own  knowledge  bearing  on  the  ques- 
tion of  mental  capacity;  and  after  he  has  stated  them  10  if 
they  show  reasonable  means  of  forming  an  impression,11  he 


degree  of  mental  capacity  neces- 
sary to  enable  one  to  make  a  valid 
will.  Garrus  v.  Davis,  234  111. 
326,  84  N.  E.  Rep.  924;  Baker  v. 
Baker,  202  111.  595,  67  N.  E.  Rep. 
410;  Schneider  v.  Manning,  121 
111.  376,  12  N.  E.  Rep.  267. 

9  The  principal  elements  of  quali- 
fication, apart  from  personal  ex- 
amination of  the  testator,  are 
knowledge  of  the  subject  of  mental 
disorder,  experience  in  dealing 
with  it,  freedom  from  any  peculiar 
abstract  theory,  and  from  con- 
ceit. The  fact  of  receiving  large 
compensation  for  testifying  is  not 
in  itself  derogatory  to  the  witness. 
People  v.  Montgomery,  13  Abb. 
Pr.  (N.  S.)  209. 

"Burney  v.  Torrey,  100  Ala. 
157,  46  Am.  St.  Rep.  33,  14  So. 
Rep.  685;  Stumph  v.  Miller,  142 
Ind.  442,  41  N.  E.  Rep.  812;  In 
re  Will  of  Fenton,  97  Iowa,  192, 


66  N.  W.  Rep.  99;  Furlong  v. 
Carrahar,  102  Iowa,  358,  71  N.  W. 
Rep.  210;  Hay  v.  Miller,  48  Neb. 
156,  66  N.  W.  Rep.  1115;  Rivard 
v.  Rivard,  109  Mich.  98,  66  N.  W. 
Rep.  681;  In  re  Kimberly's  Appeal, 
68  Conn.  428,  36  Atl.  Rep.  847; 
Gentz  v.  State,  58  N.  J.  Law  482, 34 
Atl.  Rep.  816.  A  witness  may  tes- 
tify to  facts,  tending  to  show  the 
mental  incapacity  of  a  testator, 
although  he  gives  no  opinion  as 
to  the  latter's  sanity.  Bower  v. 
Bower,  142  Ind.  194,  41  N.  E. 
Rep.  523. 

11  An  opinion  of  an  ordinary  wit- 
ness is  competent  in  connection 
with  the  facts  observed  by  him, 
although  founded  on  observation 
at  a  single  interview,  and  of  which, 
notwithstanding  a  general  impres- 
sion of  mental  quality,  he  remem- 
bers no  distinct  marked  act  of  folly 
or  childishness.  Clary  v.  Clary, 


364 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


may  be  asked,  either  on  direct  or  cross-examination,  the 
impression  as  to  mental  soundness  made  on  his  mind  at  the 
time  by  the  acts  and  declarations  of  the  testator  to  which 
he  has  testified,  and  may  characterize  them  as  rational  or 
irrational,12  but  he  cannot  express  an  opinion  on  the  general 
question,  whether  the  mind  of  the  testator  was  sound  or  un- 
sound,13 nor  testify  to  his  opinion,  or  to  impressions  made 


2  Ired.  78;  Potts  v.  House,  6  Geo. 
324.  A  non-expert  witness  is  not 
competent  to  give  an  opinion  as  to 
the  insanity,  at  the  time  of  death, 
of  a  person  with  whom  he  had  but 
a  passing  acquaintance,  and  to 
whom  he  had  not  spoken  for  eight 
months  or  a  year  before  such  death 
occurred.  Grand  Lodge  I.  0.  M. 
A.  v.  Wieting,  168  111.  408,  48  N. 
E.  Rep.  59.  But  one  who  was  pres- 
ent at,  and  some  time  before  the 
death  of  a  testatrix  who  executed  a 
will  the  day  before  her  death, 
may  testify  as  to  her  physical 
condition  for  the  two  days  before 
her  death.  Kostelecky  v.  Scher- 
hart,  99  Iowa,  120,  68  N.  W.  Rep. 
591.  Statements  of  a  testator, 
three  or  four  years  before  the  ex- 
ecution of  the  will,  tending  to 
show  his  mental  condition,  may 
be  given  in  evidence  by  a  non- 
expert witness,  as  a  basis  for  an 
opinion  by  her  as  to  his  compe- 
tency to  make  a  will.  Bower  v. 
Bower,  142  Ind.  194,  41  N.  E. 
Rep.  523. 

12  Clapp  v.  Fullerton,  34  N.  Y. 
190;  People  v.  Koerner,  154  N.  Y. 
355,  48  N.  E.  Rep.  730.  A  wit- 
ness giving  facts  may  say,  "His 
countenance  indicated  childish- 
ness." The  expression  of  coun- 
tenance is  matter  of  fact,  though 


depending  in  some  measure  on 
opinion.  Irish  v.  Smith,  8  Serg. 
&  R.  578,  s.  P.,  De  Witt  v.  Barley, 
17  N.  Y.  340,  350.  A  witness 
having  testified  to  facts  was  al- 
lowed to  say,  "His  insanity  mani- 
fested itself  in  hostility  to  myself," 
— this  being  regarded  rather  as  a 
general  statement  of  fact,  than  an 
opinion.  Palamourges  v.  Clark,  9 
Iowa,  17. 

Where  it  is  sought  to  have  a  non- 
expert witness  give  his  opinion 
formed  from  facts  or  observation, 
the  proper  practice  is  to  let  the 
witness  testify  to  the  facts  and 
then  state  to  the  jury  his  opinion 
based  on  those  facts.  The  jury 
can  then  determine  what  weight 
to  give  to  the  opinion.  Credille 
v.  Credille,  131  Ga.  40,  61  S.  E. 
Rep.  1042. 

13  Clapp  v.  Fullerton,  34  N.  Y. 
190;  People  v.  Youngs,  151  N.  Y. 
210,  219-220,  46  N.  E.  Rep.  1150; 
People  v.  Strait,  148  N.  Y.  566, 
42  N.  E.  Rep.  1045;  Paine  v. 
Aldrich,  133  N.  Y.  544,  30  N.  E. 
Rep.  725.  Even  a  mother  will 
not  be  permitted  to  testify  that 
her  deceased  daughter  was  of  un- 
sound mind,  although  it  appeared 
from  other  evidence  that  the  two 
had  lived  together  during  the  en- 
tire lifetime  of  the  daughter,  the 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


365 


upon  his  mind,  independently  of  stating  the  facts  and  cir- 
cumstances.14 Nor  can  he  be  asked  the  broad  question 
whether  the  testator  was  of  sound  and  disposing  mind,  or  its 
equivalent  in  any  form.  The  question  must  be  so  framed  as 
not  to  embrace  the  law  of  the  case.15  But  where  the  alleged 


mother  herself  not  giving  any  rea- 
son whatever  arising  from  their 
relationship  or  the  long  associa- 
tion between  them,  or  stating  any 
fact  upon  which  her  opinion  as 
to  her  daughter's  mental  condi- 
tion was  based.  Welch  v.  Stipe, 
95  Ga.  762,  22  S.  E.  Rep.  670. 

Intimate  acquaintances  are  per- 
mitted to  testify  and  to  give  their 
opinion  upon  the  question  of  the 
sanity  or  insanity  of  the  deceased, 
and  the  weight  of  this  opinion 
evidence  hi  each  instance  de- 
pends upon  the  facts  forming  the 
basis  of  it.  It  is,  however,  im- 
proper for  them  to  testify  in  answer 
to  hypothetical  questions.  In  re 
Martin,  170  Cal.  657,  151  Pac. 
Rep.  138. 

"  Hewlett  v.  Wood,  55  N.  Y.  634; 
Cram  0.  Cram,  33  Vt.  15;  Dicken 
v.  Johnson,  7  Ga.  484,  and  cases 
cited;  Hickman  v.  State,  38  Tex. 
190.  Contra,  Beaubien  v.  Cicotte, 
12  Mich.  459,  and  State  v.  Pike, 
51  N.  H.  105,  s.  c.,  11  Am.  L.  Reg. 
(N.  S.)  233,  where  the  cases  are  re- 
viewed, and  it  is  held  that  the 
opinion  is  competent  or  direct, 
leaving  the  facts  to  be  brought 
out  on  cross-examination.  See 
further  on  this  subject  Brooke  v. 
Townshend,  7  Gill,  10,  27;  Dun- 
ham's Appeal,  27  Conn.  192.  It 
has  been  said,  in  a  criminal  case, 
that  the  circumstances  must  be 


such  as  to  have  afforded  the  op- 
portunity to  form  an  accurate 
judgment  as  to  the  existence  or 
non-existence  of  the  disease,  con- 
sidered with  reference  to  the  char- 
acter or  degree  hi  which  it  is  al- 
leged to  exist.  Powell  v.  State,  25 
Ala.  21.  But  this,  if  applicable 
at  all  to  testamentary  causes,  must 
be  taken  with  the  qualification  that, 
when  the  facts  and  circumstances 
are  sufficiently  connected  with  the 
time  of  execution,  the  impression 
of  a  casual  observer  of  the  conduct 
and  language  of  the  testator  may 
be  competent.  The  important 
elements  in  the  weight  of  the  opin- 
ion of  a  non-expert  are  the  intel- 
ligence of  the  witness,  experience 
with  the  subject,  freedom  from  ab- 
stract theories,  and  from  interest 
or  prejudice,  personal  acquaintance 
with  the  decedent,  the  nature  and 
adequacy  of  the  facts  stated  as 
the  ground  of  the  opinion,  and  the 
fidelity  of  the  witness's  memory  of 
those  facts. 

On  a  question  of  fraud  or  undue 
influence  in  the  making  of  a  will, 
a  non-expert  witness  cannot  testify 
that  the  testator  was  very  sus- 
ceptible to  influence,  without  stat- 
ing the  facts  upon  which  such 
statement  is  based.  Penn  ». 
Thurman,  144  Ga.  67,  86  S.  E. 
Rep.  233. 

16  DeWitt  v.  Barley,  17  N.  Y. 


366  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

incapacity  is  imbecility,  as  distinguished  from  delusion,  such 
a  witness  may  be  asked  to  state  the  character  of  the  testator 
in  respect  to  decision  and  independence,  and  whether  he  ap- 
peared capable  of  attending  to  business,16 — all  such  state- 
ments being  preceded  by  a  statement  of  the  facts.  Such  a 
witness  cannot,  either  on  direct  or  cross-examination,  be 
asked  his  opinion  on  a  hypothetical  question.17  Such  a  wit- 
ness is,  however,  competent  to  testify  whether  testator  was 
sick  or  well,18  able  to  help  himself,  or  requiring  assistance,19 
intoxicated,20  deaf,  dumb,21  or  blind.  Whether  a  non-expert 
witness  is  competent  to  express  an  opinion  upon  the  question 
of  insanity  of  an  acquaintance  is  to  be  determined  by  the 
court.22  Common  repute,  or  the  opinion  of  the  neighborhood, 
is  not  competent  evidence  on  the  question  of  mental  capac- 
ity.23 Books,  whether  written  by  lawyers  or  physicians,  can- 
not be  read  to  the  jury  by  way  of  evidence; 24  but  may, 
within  proper  limits,  be  read  and  commented  on  in  argument. 

65.  Hereditary  Insanity. 

Where  there  is  evidence  directly  relating  to  the  testator 
and  tending  to  show  insanity  in  him  (as  distinguished  from 

347;  Deshon  v.  Merchants'  Bank,  303,  305;  King  v.  Jones,  1  Leach 

8  Bosw.  461.    Contra,  Beaubien  v.  C.  C.  102. 

Cicotte  (above).  "Grand  Lodge  I.  0.  M.  A.  v. 

The   court   will   not   allow   the  Wieting,   168  111.   408,  48  N.  E. 

question  whether  the  testator  was  Rep.  59. 

able    understandingly    to    execute  Witnesses  will  not  be  permitted 

a  will.     Baker  v.  Baker,  202  111.  to  express  an  opinion  as  to  the 

595,  67  N.  E.  Rep.  410.  competency  of  the  testator,  unless 

16  Gardiner  v.  Gardiner,  34  N.  Y.  they  are  qualified  to  express  such 

155,  165.  opinion.    In  re  Dowell,  152  Mich. 

"Dunham's  Appeal,   27   Conn.  194,  115  N.  W.  Rep.  972. 

192.  23  Foster  v.  Brooks,  6  Ga.  287; 

18  Higbie  v.  Guardian  Mut.  Life,  Lancaster  Co.  Bk.  v.  Moore,   78 
53  N.  Y.  603,  66  Barb.  462.  Perm.  St.  407. 

19  Sloan  v.  N.  Y.  Central  R.  R.  2<  Commonwealth   v.   Wilson,    1 
Co.,  45  N.  Y.  125.  Gray    (Mass.),    337.      Contra,    5 

20  People  v.  Eastwood,  14  N.  Y.  Cent.  L.  J.  439.    Compare  1  Wms. 
562,  affi'g  3  Park.  Cr.  25.  Ex'rs,  6th  Am.  ed.  415;  Pierson  v. 

21  Rex  v.  Pritchard,  7  C.  &  P.  Hoag,  47  Barb.  243. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


367 


imbecility)  25,  it  is  competent  to  show  the  insanity  of  a  parent 
or  of  an  uncle.26  But  insanity  cannot  be  proved  by  mere 
reputation  in  the  family.27 

66.  Inquisitions  and  Other  Adjudications. 

An  inquisition,  if  taken  on  notice  to  the  subject  of  it,28 
though  without  notice  to  the  parties  to  the  present  action, 
is  prima  fade  evidence  of  testamentary  incapacity  during 
the  period  expressly  M  overreached  by  it  pursuant  to  the 
statute,  and,  if  a  guardian  is  thereupon  appointed,  is  con- 
clusive evidence  of  incapacity  from  the  time  of  the  finding 
until  further  direction  of  the  court,  except  that  a  will  may 
be  proved  to  have  been  made  in  a  lucid  interval.30 

Other  Adjudications  are  not  conclusive  except  as  between 
the  parties  to  them  and  those  claiming  under  such  parties,31 
nor  always  even  competent  then. 

A  verdict  on  the  mental  state  on  a  particular  day,  is  held 
not  even  prima  facie  evidence  of  the  state  on  a  prior  or  sub- 
sequent day.32 


25  Shatter  v.  Bumstead,  99  Mass. 
112,  131,  s.  P.,  Cole's  Trial,  7  Abb. 
Pr.  N.  S.  321. 

26  Baxter  t>.  Abbott,  7  Gray,  71,81. 
"People  v.  Koerner,  154  N.  Y. 

355,  48  N.  E.  Rep.  730. 

28  Hathaway   v.   Clark,  5  Pick. 
490. 

29  Puppy  v.  Grant,  4  Ired.  Eq. 
N.  C.  443. 

30  The  general  rule  here  stated 
is  unquestioned;  the  exception  is 
perhaps  open  to  controversy.    See 
Breed  v.  Pratt,  18  Pick.  115,  and 
cases   cited;   Wadsworth   v.   Sher- 
man, 14  Barb.  169,  8  N.  Y.  382; 
Lewis    v.    Jones,    50    Barb.    645; 
Banker  v.  Banker,  63  N.  Y.  409; 
Hall  v.  Warren,  9  Ves.  605. 

An  adjudication  of  insanity  and 
the  commitment  of  the  testator  to 


an  asylum,  raises  a  presumption 
of  mental  incapacity,  and  the  pre- 
sumption continues,  notwithstand- 
ing that  the  testator  has  been 
released  on  parole,  if  there  has  been 
no  formal  discharge  from  the  asy- 
lum. The  presumption  is  not  con- 
clusive, however,  and  it  may  be 
shown  either  that  the  derange- 
ment of  mind  was  limited  and  not 
general,  or  that  the  will  was  ex- 
ecuted during  a  lucid  interval, 
Woodville  v.  Morrill,  130  Minn.  92, 
153  N.  W.  Rep.  131. 

31  Gibson  v.  Soper,  6  Gray,  279; 
Supervisors  of  Monroe  v.  Budlong, 
51  Barb.  493;  Hovey  v.  Chase,  52 
Me.  305;  and  see  1  Whart.  &  St. 
Med.  Jur.,  §  2;  Bogardus  v.  Clark, 
1  Edw.  266,  4  Paige,  623. 

32  Emery  v.  Hoyt,  46  111.  258. 


368 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


67.  Undue  Influence — The  Burden  of  Proof. 

Where  no  defect  of  powers  on  the  part  of  the  testator  is 
indicated,  the  burden  of  proving  undue  influence  is  on  the 
party  alleging  it.33  In  such  case  the  mere  fact  of  the  existence 
of  an  intimate  or  fiduciary  relation  between  the  testator  and 
the  person  provided  for,  does  not,  without  evidence  that  the 
latter  exerted  some  influence  in  the  making  of  the  bequest, 
raise  the  slightest  ground  for  any  presumption  of  undue  in- 
fluence.34 Nor,  again,  does  the  mere  fact  that  a  beneficiary 


"Tyler  v.  Gardner,  35  N.  Y. 
559;  Morton  v.  Heidorn,  135  Mo. 
608,  37  S.  W.  Rep.  504;  Doherty 
».  Gilmore,  136  Mo.  414,  37  S.  W. 
Rep.  1127;  Baldwin  v.  Parker,  99 
Mass.  79,  1  Wms.  Ex'rs,  72n.  Old 
age  alone  is  not  sufficient  ground 
for  presuming  imposition.  Butler 
v.  Benson,  1  Barb.  526. 

The  burden  of  proof  is  primarily 
on  the  proponent  of  a  will  to  show 
its  execution  in  accordance  with 
the  requirements  of  the  law,  and 
that  the  instrument  is  the  free  and 
voluntary  act  of  the  testator. 
Snodgrass  v.  Smith,  42  Colo.  60, 
94  Pac.  Rep.  312,  15  Ann.  Gas. 
548. 

Proof  of  execution  of  the  will 
according  to  established  formali- 
ties and  of  mental  capacity  of  the 
testator  raises  a  presumption  of 
validity  of  the  will.  Turner  v. 
Butler,  253  Mo.  202,  161  S.  W. 
Rep.  745. 

The  burden  of  proof  of  undue  in- 
fluence is  on  the  contestant.  San- 
sona  v.  Laraia,  88  Conn.  136,  90 
Atl.  Rep.  28;  Teckenbrock  v. 
Mclaughlin,  209  Mo.  533,  108 
S.  W.  Rep.  46. 

The  burden  of  proving  undue  in- 


fluence is  upon  the  party  who  as- 
serts it,  and  while  it  is  seldom  sus- 
ceptible of  direct  proof,  neverthe- 
less in  each  case  there  must  be 
affirmative  evidence  of  the  facts 
from  which  such  influence  can 
fairly  and  reasonably  be  inferred. 
Eckert  v.  Page,  161  N.  Y.  App. 
Div.  154,  146  N.  Y.  Supp.  513; 
Hagan  v.  Sone,  174  N.  Y.  317, 
66  N.  E.  Rep.  973;  In  re  Budlong, 
126  N.  Y.  423,  27  N.  E.  Rep.  945; 
Rollwagen  v.  Rollwagen,  63  N.  Y. 
504. 

Where  the  contestants  prove  an 
active  interference  of  the  bene- 
ficiary in  the  procurement  of  the 
will,  the  burden  shifts.  Scar- 
brough  v.  Scarbrough,  185  Ala.  468, 
64  So.  Rep.  105. 

»« Parfitt  v.  Lawless,  L.  R.  2  P. 
&  D.  462,  468,  s.  c.,  4  Moak's  Eng. 
692;  Bleecker  v.  Lynch,  1  Bradf. 
458.  Otherwise  where  the  for- 
mation of  the  fiduciary  relation 
was  induced  by  fraud  and  undue  in- 
fluence. Baker's  Case,  2  Redf. 
Surr.  179. 

A  fiduciary  relationship  must  be 
proved  before  the  presumption 
will  arise  that  the  testator  was 
unduly  influenced.  Byrne  v.  Ful- 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


369 


was  the  draftsman  of  the  will  or  gave  instructions  for  it, 
raise  such  a  presumption,35  unless  he  stood  in  a  fiduciary 
relation.36  Nor,  again,  is  the  mere  fact  that  a  beneficiary 

must  be  proof  of  actual  influence 
by  beneficiary.  Lockridge  v. 
Brown,  184  Ala.  106,  63  So.  Rep. 
524. 

Nor  does  the  contestant  shift 
the  burden  of  proof  as  to  undue 
influence  by  showing  that  a  con- 
fidential relationship  existed. 
Jones  v.  Brooks,  184  Ala.  115,  63 
So.  Rep.  978;  Scarbrough  v.  Sear- 
brough,  185  Ala.  468, 64  So.  Rep.  105. 

35  Coffin  v.  Coffin,  23  N.  Y.  9, 13. 
Compare  Barry  v.  Butlin,  2  Moore 
P.  C.  480,  1  Curt.-Ecc.  637. 

If  a  person,  whether  attorney  or 
not,  prepares  a  will  with  a  legacy 
to  himself,  it  is,  at  most,  a  suspi- 
cious circumstance  of  more  or  less 
weight,  according  to  the  facts  of 
each  case.  Snodgrass  v.  Smith, 
42  Colo.  60,  94  Pac.  Rep.  312,  15 
Ann.  Cas.  548. 

36  Crispell  v.  Dubois,  4  Barb.  393; 
Tyler  v.  Gardiner,  35  N.  Y.  559, 
595. 

Undue  influence  which  will  viti- 
ate a  will,  must  so  destroy  the  free 
agency  of  the  testator  as  to  con- 
strain him  to  do  that  which  is 
against  his  will  or  that  which  he 
would  not  have  done  if  he  had  been 
left  to  himself.  It  must  be  some 
species  of  moral  or  physical  coer- 
cion, which,  under  the  conditions 
he  was  unable  to  resist.  It  is  im- 
material from  what  source  it 
comes,  or  in  what  character  it 
appears.  It  may  take  the  form  of 
physical  force,  threats,  importu- 
nity or  other  domination.  In  re 


kerson,  254  Mo.  97, 162  S.  W.  Rep. 
171. 

Where  a  fiduciary  relationship 
existed  the  contestants  need  to 
prove  only  a  very  slight  circum- 
stance to  shift  to  the  beneficiary 
the  burden  of  proving  freedom  from 
undue  influence.  In  re  Gordon 
(N.  J.),89Atl.  Rep.  33. 

But  in  a  case  where  decedent's 
testamentary  capacity  is  conceded 
and  there  is  no  evidence  of  weak- 
ened intellect,  the  burden  is  upon 
those  asserting  undue  influence  to 
prove  it,  even  though  the  bulk  of 
the  estate  is  left  to  one  occupying  a 
confidential  relation.  In  re  Phillips, 
244  Pa.  35,  90  Atl.  Rep.  457;  Mc- 
Enroe v.  McEnroe,  201  Pa.  477,  51 
A.  327;  Caughey  v.  Brindenbaugh, 
208  Pa.  414,  57  Atl.  Rep.  821. 

Where  a  person  has  testamentary 
capacity,  but  is  so  weak  physically 
or  mentally  as  to  be  susceptible 
to  undue  influence,  and  a  substan- 
tial part  of  his  estate  is  left  to  one 
occupying  a  confidential  relation 
to  him,  the  burden  is  upon  the 
latter  to  show  that  no  improper 
influence  controlled  in  making  the 
will.  In  re  Phillips,  244  Pa.  35,  90 
Atl.  Rep.  457;  Boyd  v.  Boyd,  66 
Pa.  283;  Robinson  v.  Robinson,  203 
Pa,  400,  53  Atl.  Rep.  253;  In  re 
Yorke,  185  Pa.  61,  39  Atl.  Rep. 
1119. 

Confidential  relationship  be- 
tween testator  and  beneficiary 
will  not  of  itself  raise  a  presump- 
tion of  undue  influence.  There 


370 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


possessed  influence  and  ascendancy  not  shown  to  be  undue, 
enough,  even  though  the  will  be  unreasonable; 37  although  if 
the  evidence  justifies  the  conclusion  that  the  interfering 
mind  must  have  been  conscious  that  an  unjust  result  was 
being  obtained  by  personal  influence,  this  evidence  of  con- 
structive fraud,  combined  with  the  unnatural  character  of 
the  will,  may  be  enough  to  shift  the  burden  of  proof.38  If, 
however,  it  is  shown  that  the  beneficiary  and  the  testator 
stood  in  an  intimate  or  fiduciary  relation  toward  each 
other, — such  as  that  of  parent  and  child,39  or  grandchild,40 


Brengel,  85  N.  J.  Eq.  487,  95  Atl. 
Rep.  750. 

"Kevill  v.  Kevill,  6  Am.  L. 
Reg.  N.  S.  79.  But  as  to  the  dis- 
position of  juries,  see  1  Redf.  on 
Wills,  3d  ed.  527,  §  37;  Redf.  Am. 
Cas.  on  L.  of  W.  308,  n. 

The  burden  of  proving  undue 
influence  is  upon  the  party  who  as- 
serts it,  and  while  it  is  seldom  sus- 
ceptible of  direct  proof,  neverthe- 
less in  each  case  there  must  be 
affirmative  evidence  of  the  facts 
from  which  such  influence  can 
fairly  and  reasonably  be  inferred. 
Eckert  v.  Page,  161  N.  Y.  App. 
Div.  154,  146  N.  Y.  Supp.  513; 
Hagan  ».  Sone,  174  N.  Y.  317,  66 
N.  E.  Rep.  973;  In  re  Budlong, 
126  N.  Y.  423,  27  N.  E.  Rep.  945; 
Rollwagen  v.  Rollwagen,  63  N.  Y. 
504. 

38  See  Redf.  Am.  Cas.  on  L.  of 
W.  504,  n.,  and  cases  cited. 

As  a  general  rule  the  contestant 
has  the  burden  of  proof  on  the 
question  of  undue  influence.  But  . 
when  the  circumstances  connected 
with  the  execution  of  the  will  are 
such  as  the  law  regards  with  sus- 


picion, undue  influence  is  presumed, 
and  the  proponent  must  show  af- 
firmatively that  the  will  was  not 
procured  by  it.  In  re  Watkin,  81 
Vt.  24,  69  Atl.  Rep.  144. 

Where  the  natural  object  of  the 
testator's  bounty  is  excluded  from 
participation  in  his  estate,  where 
a  stranger  supplants  children,  and 
the  will  is  in  favor  of  the  lawyer 
drawing  and  advising  as  to  its 
provisions,  there  is  imposed  upon 
the  proponents  of  the  will  the 
burden  of  proving  freedom  from 
undue  influence.  Lockwood  v. 
Lockwood,  80  Conn.  513,  69  Atl. 
Rep.  8. 

Undue  influence  cannot  be  pred- 
icated alone  upon  the  fact  that 
the  will  is  unfair  or  unjust  in  some 
of  its  provisions,  and  for  that 
reason  unnatural.  In  re  Bartels, 
164  S.  W.  Rep.  (Tex.  Civ.  App.) 
859. 

39  Tyler  v.  Gardiner  (above) . 

A  fiduciary  relationship  between 
mother  and  son  raises  the  pre- 
sumption of  undue  influence. 
Grundmann  v.  Wilde,  255  Mo.  109, 
164  S.  W.  Rep.  (Mo.)  200;  Mowry 


40  See  Carrol  v.  Norton,  3  Bradf .  291. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


371 


husband  and  wife,41  physician  and  patient,42  confessor  and 
penitent,43  guardian  and  ward,44  or  agent  and  principal,— 
and  that  the  beneficiary  45  drew  the  will,46  or  gave  the  in- 


».  Norman,  204  Mo.  173,  103  S. 
W.  Rep.  15. 

A  confidential  relationship  be- 
tween father  and  son  raises  a  pre- 
sumption that  the  will  was  the 
result  of  undue  influence.  Wend- 
ling  v.  Bowden,  252  Mo.  647,  161 
S.  W.  Rep.  774. 

"Baker's  Case,  2  Redf.  Surr. 
179,  and  cases  cited;  Delafield  v. 
Parish  (above). 

The  relationship  of  husband  and 
wife  does  not  raise  the  presump- 
tion of  undue  influence.  In  re 
Hodgdon,  23  Cal.  App.  415,  138 
Pac.  Rep.  Ill;  In  re  Cooper,  166 
N.  C.  210,  81  S.  E.  Rep.  161. 

"The  boundary,  where  legiti- 
mate influence  on  the  part  of  a 
wife  to  persuade  her  husband  to 
make  a  testamentary  disposition 
of  his  property  in  compliance  with 
her  wishes  ends  and  illegitimate 
persuasion  or  coercion  begins,  can- 
not be  ascertained  with  the  ac- 
curacy of  mathematical  demon- 
stration. The  evidence  of  course 
must  show  that  the  testator  dis- 
posed of  his  property  differently 
than  he  would  have  done  if  he  had 
been  left  free  to  exercise  his  own 
judgment."  Emery  v.  Emery, 
222  Mass.  439,  111  N.  E.  Rep. 
287. 

42Ashfield  v.  Lomi,  L.  R.  2  P. 
&  D.  477,  s.  c.,  4  Moak's  Eng. 
700. 

43  See  McGuire  v.  Kerr,  2  Bradf . 
244;  Parfitt  v.  Lawless  (above). 

"See    Limburger    v.    Rauch,    2 


Abb.  Pr.  N.  S.  271;  Matter  of 
Paige,  62.  Barb.  476. 

45  Or  the  husband  or  wife  of 
such  an  one.  Mowry  v.  Silber,  2 
Bradf.  133;  Lansing  v.  Russell, 
13  Barb.  510. 

^Crispell  v.  Dubois,  4  Barb. 
393.  The  fact  that  a  will  or  codicil 
is  procured  to  be  written  by  per- 
sons largely  benefited  thereby  is  a 
circumstance  to  excite  scrutiny, 
and  which  requires  strict  proof 
of  volition.  Smith  v.  Henline, 
174  111.  184,  51  N.  E.  Rep.  227. 
Failure  of  the  complainants  in  a 
suit  contesting  a  will  for  undue  in- 
fluence, to  connect  the  beneficiary 
with  the  making  of  the  will,  either 
by  agent,  procurement,  sugges- 
tion or  knowledge,  is  a  strong  cir- 
cumstance indicating  the  absence 
of  undue  influence.  Harp  v.  Parr, 
168  111.  459,  48  N.  E.  Rep.  113. 
Where  there  is  no  evidence  that  a 
beneficiary  in  a  will  solicited  the 
bequest  himself,  or  wrote  the  will 
or  procured  it  to  be  written,  or  that 
his  devise  was  sought  or  taken,  the 
existence  of  intimate  friendly  re- 
lations between  the  testator  and 
the  beneficiary,  such  as  living  with 
him,  nursing  him  and  managing 
his  business,  does  not  import  un- 
due influence,  or  shift  the  burden 
of  proof  from  those  who  allege 
it.  Messner  v.  Elliott,  184  Penn. 
St.  41,  39  Atl.  Rep.  46. 

Undue  influence  to  vitiate  a  will 
must  have  an  effect  upon  the  testa- 
tor's mind  equivalent  to  that  of 


372 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


structions  to  the  draftsman,47  or  was  concerned  in  clandestine 
execution,48  the  burden  of  proof  is  thrown  on  him.  But  the 
fact  that  the  beneficiary  was  the  attorney  of  the  decedent 
does  not  alone  create  a  presumption  that  a  testamentary 
gift  was  procured  by  fraud  or  undue  influence.49  The  exist- 
ence of  an  illicit  relation  between  the  testator  and  his  ben- 
eficiary does  not,  as  a  matter  of  law,  raise  a  presumption  of 
undue  influence,  but  undue  influence  is  more  readily  inferred 
hi  such  a  case  than  where  the  relation  between  the  parties 
is  lawful.50  Where  there  is  evidence  of  defect  in  the  powers  of 
the  testator,  whether  it  be  unsoundness  or  weakness,51  or 
defect  of  the  senses,52  then  either  the  fact  that  the  beneficiary 
exercised  influence  to  secure  an  unequal  will,53  or  that  he 
stood  in  a  fiduciary  relation  above  mentioned,  and  had  any 
agency  hi  framing  the  document,54  or  exercised  control  over 


coercion  or  fraud.  Such  fraud  need 
not  be  actual;  it  may  be  construc- 
tive. The  coercion  need  not  be 
physical  duress;  it  may  be  moral 
only,  and  where  a  transaction  is 
the  result  of  moral,  social  or  domes- 
tic force  which  prevents  the  free 
action  of  the  will  and  a  true  ex- 
pression of  intention,  the  courts 
will  afford  relief  against  the  trans- 
action on  the  ground  of  undue  in- 
fluence. Phillips  v.  Gaither,  191 
Ala.  87,  67  So.  Rep.  1001. 

47  Delafield  v.  Parish  (above) . 

48  Ash  well  v.  Lomi  (above). 
"Matter  of  Will  of  Smith,  95 

N.  Y.  516. 

The  law  presumes  deeds  or  wills 
made  by  the  client  to  the  attorney, 
or  the  patient  to  the  physician,  to 
be  primafacit  void.  Hitt  v.  Terry, 
92  Miss.  671,  46  So.  Rep.  829. 

"Where  a  lawyer  writes  himself 
as  chief  beneficiary  in  a  will  he 
must  establish  that  the  will  is  not 


his  will  but  the  will  of  the  tes- 
tator." Evans  v.  Trimble,  169 
App.  Div.  363,  155  N.  Y.  Supp. 
25. 

»  Smith  v.  Henline,  174  111.  184, 
51  N.  E.  Rep.  227. 

The  fact  that  the  testator  leaves 
the  bulk  of  his  property  to  a 
woman  with  whom  he  has  main- 
tained illicit  relations,  furnishes  no 
sufficient  evidence  of  coercion  or 
constraint  in  connection  with  the 
making  of  the  will.  Weston  v. 
Hanson,  212  Mo.  248,  111  S.  W. 
Rep.  44;  Saxton  v.  Krumm,  107 
Md.  393,  68  Atl.  Rep.  1056,  126 
Am.  St.  Rep.  393,  17  L.  R.  A.  N. 
S.  477. 

61  See  Tyler  v.  Gardiner  (above) . 

62  See    Lansing    v.    Russell,    13 
Barb.  510. 

53  Harrel  v.  Harrel,  1  Duvall 
(Ky.),  203,  Redf.  Am.  Cas.  on  L. 
of  W.  505,  n. 

"See  Lee  v.  Dill,  11  Abb.  Pr. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  373 

the  testator,55  throw  upon  the  proponent  the  burden  of  giving 
evidence  of  free  and  intelligent  volition. 

67a.  Competency  of  Witnesses. 

Where  the  probate  of  a  will  is  contested  on  the  ground  of 
want  of  testamentary  capacity  on  the  part  of  the  testator, 
a  legatee  or  devisee,  who  is  not  a  subscribing  witness,  is  not 
competent  to  testify  to  personal  transactions  or  communica- 
tions with  the  decedent,  preceding,  attending  or  succeeding 
the  execution  of  the  will.56 

But  where  a  legatee  has  executed  a  valid  release  of  all  his 
interest  the  disability  is  removed,  and  he  may  properly  be 
examined  as  a  witness.57 

An  attorney,  in  receiving  the  directions  or  instructions  of 
one  intending  to  make  a  will,  although  he  asks  no  questions 
and  gives  no  advice,  but  simply  reduces  to  writing  the  direc- 
tions given  to  him,  still  acts  hi  a  professional  capacity  and  is 
prohibited  from  disclosing  any  communication  so  made  to 

214,  and  cases  above  cited  in  notes,  tatrix,  but  who  claimed  as  a  legatee 

supra.  under  former  wills  executed  by  her. 

55  Foreman  v.  Smith,  7  Lans.  443,  Held,  that  he  was  a  person  deriv- 
450,  and  cases  cited.  ing  an  interest  under  the  deceased 

Where  it  is  shown  that  the  tes-  within  the  meaning  of  the  statute, 

tator  was  unduly  influenced  by  the  Matter  of  Will  of  Smith,  95  N.  Y. 

beneficiaries  in  other  matters  dur-  516. 

ing  his  lifetime  it  may  be  presumed  "The  testator's  intention  must 

that  he  was  similarly  influenced  in  be  gathered  from  the  will  and  while 

the  drawing  of  his  will.    Fairbank  evidence  may  be  received  to  ex- 

T.  Fairbank,  92  Kan.  45,  139  Pac.  plain  any  ambiguity  in  the  desig- 

Rep.  1011,  aff'd  92  Kan.  492,  141  nation  of  a  beneficiary,  yet  neither 

Pac.  Rep.  297.  the  scrivener  nor  any  one  else  can 

56  In  re  Will  of  Eysaman,   113  be  permitted  to  testify  that  the 
N.  Y.  62,  20  N.  E.  Rep.  613;  Loder  testator  meant   or   intended   any 
v.  Whelpley,   111   N.  Y.  239,  18  disposition    of    his    property    not 
N.  E.  Rep.  874;  In  re  Will  of  Bern-  expressed  in  the  will."    Wilson  v. 
see,  141  N.  Y.  389,  391-392,  36  Storthz,  117  Ark.  418,  175  S.  W. 
N.    E.    Rep.    314.     The    probate  Rep.  45. 

of  a  will  was  opposed  by  one  who          57  Loder  v.  Whelpley,  111  N.  Y. 
was  a  stranger  in  blood  to  the  tes-      239,  18  N.  E.  Rep.  874. 


374 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


him  by  his  client.58  But  a  testator,  in  requesting  a  person  to 
sign,  as  a  subscribing  witness  to  his  will,  is  presumed  to  know 
the  obligations  assumed  by  the  witness  in  respect  to  the 
proof  of  the  will;  among  other  things,  the  duty  to  testify 
as  to  the  circumstances  attending  its  execution,  including 
the  mental  condition  of  the  testator  at  that  time,  as  evidenced 
by  his  action,  conduct  and  conversation;  and  therefore  the 
act  of  a  testator  in  requesting  his  attorney,  who  drew  his 
will,  to  become  a  witness  to  it,  is  clearly  indicative  of  an 
intention  to  waive  the  statutory  prohibition,  and  so  leave 
the  witness  free  to  perform  the  duties  of  the  office  assigned 
him.59  An  executor  and  proponent  of  a  will  is  not  disqualified 
from  testifying  to  such  transactions  or  communications.60 

68.  Indkect  Evidence. 

Undue  influence  may  be  shown  by  indirect  or  circumstan- 
tial evidence; 61  and  so  may  the  freedom  of  the  testator;  for 


"Loder  v.  Whelpley,  111  N.  Y. 
239, 18  N.  E.  Rep.  874. 

"In  re  Will  of  Coleman,  111 
N.  Y.  220, 19  N.  E.  Rep.  71. 

The  fact  that  the  attesting  wit- 
nesses were  attorneys,  and  were 
employed  by  the  widow  to  oppose 
a  contest  of  the  will,  does  not  make 
them  incompetent  to  testify.  Judy 
v.  Judy,  261  111.  470, 104  N.  E.  Rep. 
256. 

60  Loder  z>.  Whelpley,  111  N.  Y. 
239,  18  N.  E.  Rep.  874. 

61  Marvin  v.  Marvin,  3  Abb.  Ct. 
App.  Dec.  192. 

Undue  influence  must  be  shown 
by  clear  and  convincing  proof.  In 
re  Phillips,  244  Pa.  35,  90  Atl.  Rep. 
457. 

A  will  cannot  be  overthrown  on 
account  of  undue  influence  unless 
the  latter  is  proved  by  direct  and 
substantial  evidence.  There  must 


be  proof  of  a  pressure  which  over- 
powered the  mind  and  bore  down 
the  volition  of  the  testator  at  the 
very  time  the  will  was  made.  In 
re  Hodgdon,  23  Cal.  App.  415,  138 
Pac.  Rep.  Ill;  In  re  Gleason,  164 
Cal.  756,  130  Pac.  Rep.  872;  In 
re  Ricks,  160  Cal.  467,  117  Pac. 
Rep.  539;  In  re  Carithers,  156  Cal. 
422, 105  Pac.  Rep.  127. 

Undue  influence  need  not  be 
shown  by  direct  evidence.  It  may 
be  shown  indirectly  and  arise  as  a 
natural  inference  from  other  facts 
in  the  case.  It  must  not  rest  on 
mere  opportunity  to  influence,  or 
on  mere  suspicion.  There  must  be 
somewhere  proof  of  undue  influence 
itself,  either  in  fact  or  presump- 
tively. To  be  effective  it  ought  to 
be  sufficient  to  destroy  the  free 
agency  of  the  testator  at  the  time 
of  making  a  mil.  Teckenbrock 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


375 


suspicious  circumstances,  which  change  the  burden  of  proof, 
do  not  alter  the  mode  of  proof,  but  require  the  court  to  be 
vigilant  in  enforcing  the  rule.62 

Opportunity  and  interest,  however,  are  not  alone  enough 
to  sustain  a  finding  of  undue  influence.63    The  evidence  must 


v.  McLaughlin,  209  Mo.  533,  108 
S.  W.  Rep.  46. 

" 1  Wms.  on  Ex'rs,  6  Am.  ed.  147, 
and  n.  149. 

The  burden  of  proof  is  upon  the 
contestant  to  prove  undue  in- 
fluence and  not  upon  the  propon- 
ent or  beneficiaries  to  prove  the 
absence  of  undue  influence.  In 
re  Bailey,  186  Mich.  677,  153  N. 
W.  Rep.  39. 

Undue  influence,  to  affect  a  will, 
must  be  such  as  subjugates  the 
mind  of  the  testator  to  the  will 
of  the  person  operating  upon  it, 
and  an  issue  on  the  ground  of  un- 
due influence  is  to  be  refused  where 
the  most  that  can  be  found  from 
the  testimony  is  that  there  was  an 
opportunity  for  its  exercise.  In  re 
Smith,  250  Pa.  67,  95  Atl.  Rep. 
338. 

63  Seguine  v.  Seguine,  3  Abb.  Ct. 
App.  Dec.  191;  Cudney  v.  Cudney, 
68  N.  Y.  148.  Many  authorities 
as  to  what  is  sufficient  evidence 
of  undue  influence,  may  be  found 
in  the  cases  arising  on  deeds  and 
other  contracts  between  the  living; 
but  these  lay  down  too  stringent 
rules  to  be  applied  against  a  bene- 
ficiary under  a  will.  The  law  al- 
lows a  person  standing  in  a  fiduci- 
ary relation  to  use  a  degree  of 
influence  to  obtain  a  bequest  which 
he  cannot  use  to  obtain  a  grant. 
Parfitt  v.  Lawless,  L.  R.  2  P.  & 


D.  462,  468,  s.  c.,  4  Moak's  Eng. 
693. 

Mere  opportunity  to  exercise 
undue  influence  is  not  enough  to 
justify  the  conclusion  that  it  was 
exercised.  Matter  of  Schober,  154 
N.  Y.  Supp.  309,  90  Misc.  230; 
Matter  of  McDermott,  154  N.  Y. 
Supp.  923,  90  Misc.  526. 

Mere  proof  that  some  one  who 
is  beneficially  affected  by  the  will 
had  an  opportunity  to  influence  the 
testator  in  his  favor,  or  proof  that 
one  beneficially  affected,  not  only 
had  an  opportunity,  but  a  disposi- 
tion, to  avail  himself  of  opportuni- 
ties presented,  without  proof  of 
something  done  or  attempted  by 
him  in  the  way  of  influencing  the 
testator,  would  not  be  sufficient 
proof  of  undue  influence  exercised. 
Nor  would  proof  of  the  fact  that 
one  who  is  shown  to  be  hostile  to 
those  who  did  not  get  recognition 
in  the  will  had  an  opportunity  to 
exercise  hostile  influence  on  the 
mind  of  the  testator  be  sufficient 
without  further  proof.  Zinkula  v. 
Zinkula,  171  Iowa,  287, 154  N.  W. 
Rep.  158. 

It  is  not  sufficient  to  show  that 
there  was  an  opportunity  to  exer- 
cise undue  influence,  or  that  there 
was  a  possibility  that  it  was  exer- 
cised, but  some  evidence  must  be 
adduced  showing  that  such  in- 
fluence was  actually  exercised, 


376 


ACTIONS    BY   AND    AGAINST   HEIRS   AND 


justify  the  conclusion  of  a  present  constraining  operative 
power  upon  the  mind  at  the  tune  of  the  act.  Influence  long 
before  64  or  after 65  the  act,  is  not  alone  enough,  but  may, 
in  connection  with  other  circumstances,  raise  a  presumption 
of  its  existence  at  the  time.66 


69.  Relevant  Facts. 

On  either  side  of  the  question  of  undue  influence  a  very 
wide  range  of  inquiry  is  allowed.67  Evidence  of  the  disposi- 
tion and  mental  qualities  of  the  testator; 68  his  condition  at 
the  tune; 69  his  manifestation  of  feeling  toward  those  ben- 


and  by  evidence  is  meant  something 
of  substance  and  relevant  conse- 
quence, and  not  vague,  uncertain, 
or  irrelevant  matter  not  carrying 
the  quality  of  proof,  or  having  fit- 
ness to  induce  conviction.  Brent 
v.  Fleming,  165  Ky.  356,  176  S.  W. 
Rep.  1134. 

"McMahon  v.  Ryan,  20  Perm. 
St.  329. 

The  undue  influence  which  must 
be  shown  in  order  to  overturn  a 
will  must  be  such  influence  as 
dominates  the  will  of  the  testator 
at  the  time  of  its  execution.  Pad- 
gett v.  Pence  (Mo.  App.),  178  S.  W. 
Rep.  205. 

"Eckert  v.  Flowery,  43  Id.  46. 

The  point  of  time  to  be  con- 
sidered is  that  at  which  the  testa- 
tor executed  the  writing  in  dispute. 
In  re  Craft,  85  N.  J.  Eq.  125,  94 
All.  Rep.  606. 

66 1  Wms.  on  Ex'rs,  6  Am.  ed. 
72. 

No  will  should  be  held  invalid  on 
the  ground  of  undue  influence 
where  the  evidence  fails  to  show 
that  sort  of  pressure  which  over- 
powers the  mind  and  masters  the 


volition  of  the  testator  at  the  very 
moment  of  the  testamentary  act. 
In  re  Clark,  170  Cal.  418,  149 
Pac.  Rep.  828. 

67  Redf.  on  W.,  3d  ed.  536,  §  51; 
Beaubien  v.  Cicotte,  12  Mich.  459, 
1  Wms.  Ex'rs,  6  Am.  ed.  74,  n. 

A  wide  range  of  examination 
will  be  permitted  on  the  question 
of  undue  influence.  Bramel  v. 
Grain,  157  Ky.  671,  163  S.  W. 
Rep.  1125. 

68  Belief    in    witchcraft,    ghosts, 
spiritualism,    etc.,    in    connection 
with  evidence  of  feeble  mind,  is 
competent  on  the  question  of  un- 
due influence.    Woodbury  v.  Obear, 
7  Gray  (Mass.),  467,  SHAW,  C.  J. 
Compare  Robinson  v.  Adams,  62 
Me.  369. 

The  existence  of  a  delusion  in 
the  mind  of  a  testator,  even  at  the 
time  of  making  his  will,  as  to  par- 
ticular persons  or  things,  does  not 
invalidate  the  will  unless  it  is  the 
product  of  the  delusion.  Brown  v. 
Fidelity  Trust  Co.,  126  Md.  175, 
94  Atl.  Rep.  523. 

69  Directions  given  by  his  physi- 
cian,   since    deceased,    competent 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


377 


efited,70  and  toward  those  cut  off; 71  their  situation  in  life; 72 
the  testamentary  intentions  the  testator  entertained  before 
he  was  subjected  to  influence;73  the  circumstances  of  the 
preparation  of  the  instrument; 74  the  influence  exercised,  by 


as  part  of  res  gestce.    Platt  v.  Platt, 
58  N.  Y.  648. 

The  reasonableness,  naturalness, 
and  the  general  character  of  a 
codicil,  while  not  controlling,  are 
circumstances  which  may  properly 
considered  with  other  evidence 
upon  the  subject  of  undue  influ- 
ence. In  re  Bailey,  186  Mich. 
677, 153  N.W.  Rep.  39. 

70  Beaubien  r.  Cicotte,  12  Mich. 
459. 

The  influence  exerted  by  kind- 
ness to  the  testator,  or  by  feelings, 
on  his  part,  of  gratitude  to  or  af- 
fection for  the  beneficiaries,  or 
those  alleged  to  have  brought  about 
the  testamentary  disposition,  is 
not  undue  influence.  Matter  of 
Schober,  154  N.  Y.  309,  90  Misc. 
230. 

Any  reasonable  influence  ob- 
tained by  acts  of  kindness  or  by 
appeals  to  the  feelings  or  under- 
standing, and  not  destroying  free 
agency,  is  not  undue  influence. 
Brent  v.  Fleming,  165  Ky.  356, 
176  S.  W.  Rep.  1134. 

Kindly  offices  and  attentions 
rendered  by  a  beneficiary  and  his 
family  to  a  testator  have  repeatedly 
been  held  to  be  legitimate  rather 
than  undue  influences.  In  re 
Craft,  85  N.  J.  Eq.  125,  94  Atl. 
Rep.  606. 

71  Lewis  v.  Mason,  109  Mass.  169; 
Fairchild  v.  Bascomb,  35  Vt.  417. 

In   a   proceeding   to   probate   a 


lost  will  which  has  been  estab- 
lished, evidence  which  showed  a 
feeling  of  antipathy  on  the  part 
of  testator  toward  the  contestant, 
is  admissible.  In  re  Keene,  189 
Mich.  97,  155  N.  W.  Rep.  514. 

72  Thus   their  poverty,   and  his 
knowledge  of  the  intemperance  of 
the    sole    legatee    is    competent. 
Fairchild  v.  Bascomb,  35  Vt.  417. 
Evidence  that  one  who  formerly 
lived  in  the  testator's  family  was 
without    means,   and   therefore   a 
more  natural  object  of  his  bounty 
than  the  legatees  named  in  the  will, 
is   inadmissible   to   show  lack   of 
testamentary  capacity  or  undue  in- 
fluence.   In  re  Merriman's  Appeal, 
108  Mich.  454,  66  N.  W.  Rep.  372. 

Where  a  will  is  made  in  accord- 
ance with  the  dictates  of  natural 
justice,  it  will  require  strong  evi- 
dence of  lack  of  mental  capacity 
or  undue  influence  to  nullify  it. 
Gunderson  v.  Rogers,  160  Wis.  468, 
152  N.  W.  Rep.  157. 

73  Cases   in   notes    (below) .    As 
to    declarations    after    it    ceased, 
see  Redf.  on  W.  551,  and  notes 
(below). 

A  will  may  be  set  aside  on  the 
ground  of  undue  influence  even 
though  it  results  in  intestacy.  In 
re  Crissick,  174  Iowa,  397,  156 
N.  W.  Rep.  415. 

74  Beaubien  v.  Cicotte,  12  Mich. 
459. 

Evidence  that  the  lawyer  who 


378 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


the  party  charged,  over  the  testator  in  other  matters; 75  and 
the  personal  relation  sustained  by  them; 76 — is  all  competent. 
It  is  also  competent  to  show  that  the  party  charged  know- 
ingly made  false  statements  that  he  was  ignorant  of  the 
existence  of  the  will,  or  that  its  contents  were  less  favorable 
to  him  than  in  fact  they  were.77 

70.  Declarations  and  Conduct  of  Testator. 

.    When  there  is  evidence  tending  to  show  fraud  or  undue 


drew  the  will  was  retained  to  do  so 
by  the  beneficiaries  and  received 
all  his  instructions  from  them  is 
competent.  In  re  Beck,  79  Wash. 
331, 140  Pac.  Rep.  340. 

The  fact  that  the  testator  made 
a  change  in  his  will  is  not  in  itself 
proof  of  undue  influence.  Gregg 
v.  Moore,  33  Ohio  Cir.  Ct.  R.  534. 

76  Evidence  of  instances  in  which 
the  person  charged  with  undue  in- 
fluence exercised  controlling  au- 
thority over  the  testator  by  im- 
perious language,  to  which  the 
testator  submitted,  is  competent. 
Lewis  p.  Mason,  109  Mass.  169. 
And  evidence  of  other  transfers 
of  property  obtained  by  the  same 
person,  and  the  testator's  forget- 
f illness  of  them,  is  competent. 
Lewis  v.  Mason,  109  Mass.  169. 

While  a  belief  in  spiritualism  or 
in  any  other  religious  creed  if 
played  upon  by  one  designing  to 
influence,  and  thereby  actually 
influencing  the  believer's  testa- 
mentary disposition  of  his  prop- 
erty, may  invalidate  the  will  on 
the  ground  of  undue  influence,  the 
belief  is  of  itself  no  evidence  of  in- 
sanity. In  re  Hanson,  87  Wash. 
113,  151  Pac.  Rep.  264. 

78  The  unlawful  cohabitation  of  a 


testator  with  the  mother  of  an  il- 
legitimate child,  a  legatee  in  the 
will,  is  not  of  itself  sufficient  evi- 
dence to  justify  a  jury  in  finding 
undue  influence  on  the  part  of  the 
mother.  Rudy  v.  Ulrich,  69  Penn. 
St.  177,  s.  c.,  8  Am.  Rep.  238.  But 
if  the  relation  of  intimacy  was  con- 
sciously unlawful,  as  in  the  case  of 
a  married  man  living  with  a  para- 
mour, and  making  his  will  in  favor 
of  her  or  her  children,  undue  in- 
fluence may  be  inferred  by  the 
jury,  as  a  question  of  fact.  Dean 
v.  Negley,  41  Penn.  St.  312;  Mon- 
roe v.  Barclay,  17  Ohio  St.  302. 
"The  personal  and  family  rela- 
tions of  a  testator,  the  pecuniary 
condition  of  his  children,  and  what 
he  may  have  said  of  them  in  con- 
nection with  his  will,  are  all  ad- 
missible, and  may  be  considered 
either  to  sustain  or  to  rebut  the 
claim  that  certain  inclusions  or 
exclusions  were  unnatural  and 
indicative  of  mental  influences." 
Kirkpatrick  v.  Jenkius,  96  Tenn. 
85,  90,  33  S.  W.  Rep.  819. 

"Fairchild  v.  Bascomb,  35  Vt. 
404,  418.  And  see  Platt  v.  Platt, 
58  N.  Y.  648.  Compare  Jenkins 
v.  Hall,  7  Jones  L.  N.  C.  295. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


379 


influence,  then  the  conduct  and  declarations  of  the  testator 
not  only  at  the  time  of  execution,  but  before  and  after,  are 
relevant  for  the  purpose  of  manifesting  his  mental  qualities 
and  disposition,  and  consequent  susceptibility  to  the  fraud 
or  undue  influence;78  his  intelligent  understanding  of  the 
will  made;  his  testamentary  intentions  existing  before  he 
was  subjected  to  the  influence,79  and  his  satisfaction  or  dis- 
satisfaction with  it  after  the  influence  was  removed.80  It 
seems  to  be  now  considered  that  a  declaration  which  is  com- 
petent for  throwing  light  on  the  testator's  mind  is  not  to  be 
excluded  merely  because  it  includes  his  narratives  of  menace, 
or  confessions  of  fear,  or  acknowledgments  of  submission 


78  Shailer  v.  Bumstead,  99  Mass. 
119.  "Though  the  cases  are  not 
harmonious,  we  think  the  great 
weight  of  authority,  and  of  reason, 
is  to  the  effect  that  subsequent 
declarations  of  an  alleged  testator 
may  be  considered  by  the  jury  upon 
the  issue  of  mental  incapacity, 
but  that  they  cannot  be  considered 
upon  an  issue  of  undue  influence, 
unless  there  be  independent  proof 
indicating  the  presence  of  undue 
influence,  and  then  only  to  show  a 
condition  of  mind  susceptible  to 
such  influence,  and  the  effect 
thereof  upon  the  testamentary 
act."  Kirkpatrick  v.  Jenkins,  96 
Term.  85,  89,  33  S.  W.  Rep. 
819. 

To  justify  breaking  a  will  on 
the  ground  of  undue  influence, 
such  influence  must  affirmatively 
be  shown  and,  apart  from  declara- 
tions of  the  testator,  be  of  a  char- 
acter to  destroy  the  free  agency  of 
the  testator  in  the  disposition  of 
the  property.  Woodville  v.  Mer- 
rill, 130  Minn.  92,  153  N.  W.  Rep. 
131. 


79 1  Redf .  on  W.,  3d  ed.  536,  §  51  ; 
Redf.  Am.  Cas.  on  L.  of  W.  487, 
n.;  Neel  v.  Potter,  40  Perm.  St. 
483;  Denison's  Appeal,  29  Conn. 
402.  So  also  is  evidence  of  his  pe- 
cuniary arrangements  for  the  bene- 
fit of  those  charged  with  undue 
influence  in  procuring  the  later 
will.  Beaubien  v.  Cicotte,  12 
Mich.  459. 

It  is  improper  to  ask  a  subscrib- 
ing witness  whether  any  fraud, 
duress  or  undue  influence  was  used 
in  order  to  cause  the  testator  to 
subscribe  his  name  to  the  will. 
O'Day  v.  Crabb,  269  111.  123, 
109  N.  E.  Rep.  724. 

80  Thus  to  rebut  evidence  of  un- 
due influence,  evidence  that  the 
influence  was  afterwards  wholly 
removed,  and  the  testator,  though 
he  lived  long  in  freedom  made  no 
alteration,  is  competent  (Wilson  v. 
Moran,  3  Bradf.  172,  1  Redf.  on 
W.  526,  par.  35) ;  and  so  a  fortiori, 
is  evidence  that  he  affirmatively 
recognized  the  will.  Taylor  v. 
Kelly,  31  Ala.  59.  Contra,  Lamb  v. 
Girtman,  26  Geo.  625. 


380  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

to  pressure  or  urgency,  or  even  his  statement  that  the  will 
previously  made  was  not  freely  or  not  intelligently  executed; 
but  that  all  that  is  requisite  to  the  competency  of  the  dec- 
larations is  that  they  be  of  a  nature  to  manifest  the  mental 
quality,  and  be  sufficiently  approximate  in  point  of  time  to 
throw  light  on  the  mental  quality  at  the  time  of  execution; 
and  the  jury  are  to  be  directed  not  to  regard  them  as  evidence 
of  the  fact  declared.81  In  other  words,  the  declarations  of 
the  testator  as  to  the  acts  or  influence  of  others  are  not,  alone, 
competent  evidence  of  such  acts  or  influence,82  except  when 
part  of  the  res  gestce,ss  or  so  far  as  made  in  the  presence  of  the 
parties  against  whom  they  are  adduced ;  although,  when  the 
acts  are  proved,  the  declarations  of  the  testator  may  be 
given  hi  evidence  to  show  the  operation  they  had  upon  his 
mind.84  To  rebut  the  idea  of  fraud  or  undue  influence,  and 
to  show  that  the  will  is  the  deliberate  mind  of  the  testator, 
previous  declarations  of  testator,  consistent  with  the  scheme 
of  the  will,  are  admissible.85 

71.  Fraud. 

Fraud  in  obtaining  a  will  may  be  shown  by  indirect  and 
circumstantial  evidence;  and  any  circumstance,  howsoever 

81  Shailer  v.  Bumstead,  99  Mass,  or  after  the  execution  of  the  will, 

113,    and    Beaubien    v.    Cicotte,  while  proper  evidence  as  bearing 

12  Mich.  459.    Thus,  declarations  upon  the  mental  capacity,  and  the 

that  he  was  afraid  of  his  wife  and  condition  of  the  mind  of  the  tes- 

compelled   to   submit  to   her  de-  tator    with    reference    to    objects 

mands,   in   order   to  have   peace,  of  his  bounty,  are  not  competent 

were  held  competent.    Beaubien  v.  evidence   of   the   facts   stated    in 

Cicotte  (above).  them  or  to  prove  fraud  or  undue  in- 

82 1  Redf .  on  W.  546,  §  39.    And  fluence.      Marx   v.    McGlynn,    88 

the   fact    that    they    were    dying  N.  Y.  357. 

declarations  does  not  render  them          84  Cudney  v.  Cudney,  68  N.  Y. 

competent.    Jackson  v.  Kniffen,  2  148. 
Johns.  32.  8S  Kaufman    v.    Caughman,    49 

83  Doe  v.  Allen,  8  T.  R.  147;  Rose.  S.  C.  159,  27  S.  E.  Rep.  16;  Harp 

N.  P.  22.    Diaries  kept  and  letters  v.  Parr,  168  111.  459,  48  N.  E.  Rep. 

written  by  a  testator  either  before  113. 


NEXT    OF    KIN,    DEVISEES    AND    LEGATEES 


381 


slight,  if  not  wholly  irrelevant  to  the  issue  of  fraud,  may  be 
admitted.86 

72.  Revocation. 

The  modes  of  revocation  are  now  usually  prescribed  by 
statute; 87  and  statutes  declaring  that  specified  acts  shall  be 
deemed  a  revocation,  create  a  conclusive  presumption,  which 
is  not  rebuttable  by  extrinsic  evidence.88  Where  the  statute 
makes  the  testator's  intent  an  essential  element,  as  in  the 
case  of  marring  the  document,  parol  evidence  is  admissible 
in  respect  to  the  intent,  within  the  limits  hereafter  stated. 
In  other  cases,  extrinsic  evidence  is  admissible  to  show  the 
situation  upon  which  the  legal  question  of  revocation  accord- 
ing to  the  statute  depends;  and  the  effect  of  these  facts  under 
the  statute  is  matter  of  law  which  cannot  be  varied  by  ev- 
idence of  testator's  actual  intent.89 


86  Davis  v.  Calvert,  5  Gill  &  J. 
269.     The  testimony  of  a  disin- 
terested party  who  drew  up  the 
will  is  admissible  to  show  that  the 
will    when   probated    was   in   the 
same  form  and   condition,   as   to 
the  paper  upon  which  it  was  writ- 
ten,   as    it    was    when    executed. 
Harp  v.  Parr,  168  111.  459,  48  N.  E. 
Rep.  113. 

87  2  N.  Y.  R.  S.  64,  4  Kent's 
Com.  521.    This  statute  excludes 
all  other  modes.     Ordish  v.  Mc- 
Dermott,  2  Redf.   Surr.   R.  463, 
and  cases  cited. 

88Lathrop  v.  Dunlop,  4  Hun, 
213,  aff'd  in  63  N.  Y.  610;  Walker 
».  Hall,  34  Penn.  St.  483,  486. 

Mutual  wills  may  or  may  not 
be  revoked  at  the  pleasure  of 
either  party,  according  to  the  cir- 
cumstances and  understanding 
upon  which  they  were  executed. 
In  order  that  either  party  be  de- 


nied the  right  to  revoke  such  a 
will,  it  must  appear  by  clear  and 
satisfactory  evidence,  or  on  the 
face  of  the  wills,  that  these  were 
executed  in  pursuance  of  a  con- 
tract or  compact  between  the  par- 
ties each  in  consideration  of  the 
other;  but  even  then  either  party 
may  revoke  during  the  lifetime 
of  both,  providing  the  other  have 
notice  of  the  intention  so  to  do. 
Campbell  v.  Dunkelberger,  172 
Iowa,  385,  153  N.  W.  Rep.  56. 

"Adams  v.  Winne,  7  Paige,  99. 

When  it  appears  upon  the  face 
of  a  will  that  the  names  of  certain 
beneficiaries  have  been  stricken 
out  by  pen,  evidence  of  declara- 
tions of  the  testator  made  after 
the  execution  of  his  will,  that  he 
meant  to  strike  out  of  his  will  the 
names  of  such  beneficiaries  so  that 
they  would  not  share  in  his  estate, 
is  competent.  Barfield  v.  Carr, 


382 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


73.  Marring  the  Document. 

When  a  revocation  by  burning,  cancelling,  tearing,  or 
obliterating,  is  relied  on,  it  must  appear  that  the  testator 
had  testamentary  capacity  at  the  time,90  and  that  the  act  was 
done 91  by  him  or  his  authority,92  with  intent  to  revoke.93 


169  N.  C.  574,  86  S.  E.  Rep. 
498. 

» Idley  v.  Bowen,  11  Wend.  227. 

Where  the  contents  of  the  parts 
excised  from  a  will  may  be  shown 
by  competent  evidence,  the  will, 
including  the  missing  clauses, 
should  be  probated.  In  case  such 
evidence  is  not  forthcoming,  that 
part  of  the  will  which  remains 
should  be  probated.  Matter  of 
Kent,  169  App.  Div.  388, 155  N.  Y. 
Supp.  894. 

91  Compare  Pry  or  v.  Goggin,  17 
Geo.  444;  Mundy  v.  Mundy,   15 
N.   J.    Eq.     (2    McCarter),    290; 
Malone  r.  Hobbs,   1  Robt.   (Va.) 
246;  Runkle  v.  Gates,  11  Ind.  95; 
Boyd  v.  Cook,  3  Leigh  (Va.),  32. 

92  The  onus  of  making  out  that 
the  cancellation  of  a  will  was  the 
act  of  the  testator  himself  lies  upon 
those  who  oppose  the  will.    1  Wms. 
Ex'rs,  Am.  ed.  196,  2  Whart.    Ev., 
§894. 

Where  the  will  found  among  the 
testator's  papers  has  the  signature 
entirely  torn  off,  the  presumption 
is  that  the  testator  marred  the 
paper  animo  revocandi.  White- 
head  v.  Kirk,  104  Miss.  776,  61 
So.  Rep.  737,  62  So.  Rep.  432, 
51  L.  R.  A.  N.  S.  187,  Ann.  Cas. 
1916,  A.  1051. 

Where  the  executor  finds  the 
will  in  the  place  in  which  the  tes- 
tator's instructions  said  it  would 


be  found,  and  the  first  page  of  such 
will  is  missing,  the  legal  pre- 
sumption arises  and  prevails  that 
the  deceased  removed  the  first 
page.  In  re  Sheaffer,  240  Pa.  83, 
87  Atl.  Rep.  577. 

The  presumption  is  that  marks 
made  upon  a  will  which  was  in  the 
possession  and  control  of  the  tes- 
tator up  to  the  time  of  his  death 
are  those  of  the  testator.  Pyle  v. 
Murphy,  180  111.  App.  18;  Marshall 
v.  Coleman,  187  111.  556,  58  N.  E. 
Rep.  628. 

Where  a  will  found  among  tes- 
tator's papers  is  sufficiently  mutil- 
ated to  amount  to  a  revocation, 
the  presumption  is  that  the  tes- 
tator mutilated  it  animo  revo- 
candi. Matter  of  Francis,  73  N.  Y. 
Misc.  148,  132  N.  Y.  Supp.  695. 

»3  Clark  v.  Smith,  34  Barb.  140, 
and  cases  cited. 

Under  the  common  law,  where 
there  is  nothing  to  show  at  what 
time  an  interlineation  or  alteration 
was  made  in  a  will  it  would  be 
presumed  to  have  been  made  be- 
fore execution.  Matter  of  Easton, 
84  N.  Y.  Misc.  1,  145  N.  Y.  Supp. 
373. 

Where  an  interlineation,  fair 
upon  the  face  of  an  instrument, 
is  entirely  unexplained,  there  is  no 
presumption  that  it  was  fraudu- 
lently made  after  the  execution  of 
the  instrument.  Grossman  v. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


383 


The  intent  may  be  disproved  by  evidence  that  the  testator 
had  not  the  freedom  and  intelligence  requisite  for  a  tes- 
tamentary act.94  Direct  proof  of  the  act  and  intent  is  not 
essential;  for  evidence  that  a  will,  last  seen  or  heard  of  in  the 
custody  of  the  testator,  was,  after  his  death,  found  among 
his  effects,  cancelled,  raises  a  presumption  that  the  cancella- 
tion was  done  by  him  with  intent  to  revoke.95  Feeble  and 


Grossman,  95  N.  Y.  145;  Tn  re 
Conway,  124  N.  Y.  455,  26  N.  E. 
Rep.  1028,  11  L.  R.  A.  796;  Mat- 
ter of  Dake,  75  N.  Y.  App.  Div. 
403,  78  N.  Y.  Supp.  29. 

Unattested  or  unexplained  al- 
terations in  a  will  are  presumed 
to  have  been  made  after  execution. 
Wetmore  v.  Carryl,  5  Redf.  (N. 
Y.)  544. 

A  presumption  that  alterations 
in  a  will  were  made  after  execution 
may  be  rebutted  by  internal  evi- 
dence apparent  on  the  face  of  the 
will  itself  that  the  alteration  was 
made  before  execution,  or  by  ex- 
trinsic evidence,  such  as  the  oath 
of  an  attesting  witness,  or  the  dec- 
larations of  the  testator  if  made 
before  execution.  Matter  of  Eas- 
ton,  84  N.  Y.  Misc.  1,  145  N.  Y. 
Supp.  373. 

Where  a  codicil,  which  is  found 
in  actual  or  constructive  custody 
of  the  testatrix,  is  torn  into  frag- 
ments, the  presumption  is  that  the 
tearing  was  done  by  her  animo 
revocandi.  In  re  Kathan,  141  N.  Y. 
Supp.  705. 

Where  a  will  after  its  execution 
remains  in  the  possession  of  the 
testator  until  his  death,  at  which 
time  it  is  found  among  his  papers 
with  his  name  erased,  the  pre- 
sumption is  that  the  testator 


erased  his  name,  and  that  he  did 
so  with  the  intention  of  revoking 
it.  Crosby  v.  Crosby,  30  Ohio  Cir. 
Ct.  Rep.  14. 

"Batton  v.  Watson,  13  Geo. 
62. 

"Evans  v.  Dallow,  31  L.  J. 
Prob.  128. 

Where  the  will  remains  in  the 
possession  of  the  testator  and  after 
his  death  certain  portions  of  the 
will  were  found  to  have  been  can- 
celled the  presumption  is  that  the 
testator  cancelled  those  provisions 
with  intent  to  revoke  them.  Home 
of  the  Aged  of  M.  E.  Church  v. 
Bantz,  107  Md.  543,  69  Atl.  Rep. 
376. 

If  when  a  will  is  taken  from  the 
testator's  valuable  effects,  the  same 
having  previously  been  in  his 
custody,  it  is  found  that  the  sig- 
nature of  the  testator  is  torn  en- 
tirely through,  dividing  all  the 
letters  of  the  name  as  near  in 
half  as  it  could  well  be  done,  and 
that  the  will  is  marked  on  its  face 
in  two  prominent  and  material 
portions  "Cancelled  by  Isaac  Well- 
born" (the  testator),  a  presump- 
tion is  raised  calling  for  an  ex- 
planation from  the  propounder,  and 
the  burden  is  placed  on  him  to 
prove  the  will  notwithstanding 
the  circumstances.  In  re  Well- 


384 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


incomplete  efforts  to  cancel  or  destroy  may  be  sufficient, 
where  the  evidence  of  intent  is  direct  and  clear.96 

74.  Disappearance  of  the  Document. 

Evidence  that  a  will  was  once  in  existence,  and  last  heard 
of  in  the  possession  of  the  testator,  and  that  it  was  not  to  be 
found  at  his  death,  raises  a  presumption  that  it  was  destroyed 
by  him  with  intent  to  cancel  it.97  This  presumption  is  not 


born,  165  N.  C.  636,  81  S.  E.  Rep. 
1023. 

Where  a  will  remains  in  testa- 
tor's possession  until  his  death, 
and  is  then  found  among  his  papers, 
with  erasures,  alterations,  cancel- 
lations or  tearings,  the  presump- 
tion is  that  such  act  manifest  upon 
the  will  was  done  by  the  testator 
with  the  intention  of  revocation. 
Burton  v.  Wylde,  261  111.  397,  103 
N.  E.  Rep.  976. 

Where  words  in  a  will  are  stricken 
out  by  a  mark  running  through 
them  it  will  be  presumed  that  it 
was  done  by  the  testator.  Wilkes 
v.  Wilkes,  115  Va.  886, 80  S.  E.  Rep. 
745. 

••  See  Dan  v.  Brown,  4  Cow.  483, 
490.  Compare  Burns  v.  Burns,  4 
Serg.  &  R.  295;  Sweet  v.  Sweet, 

I  Redf.  Surr.  451;  Smock  v.  Smock, 

II  N.  J.  Eq.  (3  Stock.)  156;  Ben- 
nett v.  Sherrod,  3  Ired.  L.  (N.  C.) 
303;   Bethel  v.  Moor,  2  Dev.   & 
B.  L.  (N.  C.)  311;  Bell  v.  Fother- 
gill,  L.  R.  2  P.  &  D.  148;  Gilas 
v.  Warren,  Id.  401;  Card  v.  Grin- 
man,  5  Conn.  164. 

»7  Idley  v.  Bowen,  11  Wend.  236; 
Bulkley    v.    Redmond,    2    Bradf. 
281.     A  principle  of  universal  ac-  * 
ceptance  in  both  the  English  and 
American  courts.    1  Redf.  on  Wills, 


328  (48).  It  seems  that  the  nature 
of  the  contents  is  material  to  the 
question  whether  the  testator  de- 
stroyed it.  Per  Sir  J.  Hannen, 
Sugden  v.  Ld.  St.  Leonards,  L.  R. 
1  Prob.  Div.  176,  195. 

If  it  be  established  that  the  de- 
cedent made  a  will  such  as  the 
statute  permits  to  dispose  of  prop- 
erty, and  it  was  last  seen  in  the 
possession  or  under  the  control 
of  the  decedent,  and  at  his  death 
no  will  can  be  found  upon  proper 
search,  the  presumption  obtains 
that  the  will  was  destroyed  aniino 
revocandi.  Hard  v.  Ashley,  88 
Hun,  103,  34  N.  Y.  Supp.  583; 
Burton  v.  Wylde,  261  111.  397, 
103  N.  E.  Rep.  976;  St.  Mary's 
Home  for  Children  v.  Dodge,  257 
111.  518,  101  N.  E.  Rep.  46;  Tay- 
lor v.  Pegram,  151  111.  106,  37 
N.  E.  Rep.  837;  Griffith  v.  Higin- 
botom,  262  111.  126,  104  N.  E. 
Rep.  233,  Ann.  Cas.  1915,  B.  250. 

Where  a  will  is  executed  in  du- 
plicate only  one  of  the  duplicates 
(called  the  authentic)  need  be 
probated,  but  the  other  must  be 
produced  in  court,  as  a  revocation 
of  one  is  a  revocation  of  both. 
So  where  the  testator  had  one 
duplicate  in  his  custody  during 
his  life,  and  after  his  death  it 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


385 


conclusive,98  but  it  serves  to  throw  upon  the  party  relying 
on  the  will  the  burden  of  showing  that  it  was  not  so  destroyed, 
or  that  the  testator  was  not  of  sound  mind  at  the  tune." 
The  presumption  is  not  to  be  rebutted  merely  by  parol  ev- 
idence of  intent  to  make  another  will.1  Evidence  that  the 
lost  will,  when  last  known  of,  was  in  the  control  of  a  person 
having  adverse  interest,  is  sufficient  to  sustain  a  finding  that 
it  was  in  existence  at  testator's  death,  or  was  fraudulently 
destroyed  by  another.2  The  fact  that  the  testator,  after 


cannot  be  found,  the  presumption 
is  that  he  destroyed  it  animo  re- 
vocandi, and  it  follows  that  the 
other  duplicates  cannot  be  pro- 
bated. Matter  of  Schofield,  72 
Misc.  281,  129  N.  Y.  Supp.  190. 

Where  a  will  cannot  be  found 
after  the  death  of  the  testator, 
who  had  the  will  in  his  custody, 
the  presumption  is  that  he  de- 
stroyed it  animo  revocandi;  but 
the  presumption  may  be  rebutted. 
In  re  Cunnion,  2oi  N.  Y.  123, 
94  N.  E.  Rep.  648,  Ann.  Cas.  1912, 
A.  834;  St.  Mary's  Home  for  Chil- 
dren v.  Dodge,  257  111.  518,  101 
N.  E.  Rep.  46;  Matter  of  Ascheim, 
75  N.  Y.  Misc.  434, 135  N.  Y.  Supp. 
515;  In  re  Ziegenhagen,  148  Wis. 
382,  134  N.  W.  Rep.  905. 

In  order  to  probate  the  copy  of 
a  will  which  was  made  some  nine- 
teen years  after  the  will  was  exe- 
cuted, the  absence  of  the  original 
will  must  be  accounted  for,  its 
custody  from  the  time  of  its  exe- 
cution must  be  shown,  and  some 
explanation  must  be  given  show- 
ing who  made  the  copy  or  by  whom 
it  was  produced.  In  re  Francis, 
94  Neb.  742,  144  N.  W.  Rep.  789, 
50  L.  R.  A.  N.  S.  861. 


98  Brown   v.   Brown,   8   Ellis   & 
&  B.  884,  s.  c.,  92  Eng.  C.  L.  875. 
But  it  is  more  or  less  strong,  ac- 
cording to  the  nature  of  the  cus- 
tody.   Per  COCKBURN,  C.  J.,  Sug- 
den  v.  Ld.  St.  Leonards,  L.  R.  1 
Prob.  Div.  154,  218. 

Where  a  will  cannot  be  found  at 
the  death  of  the  testator,  after 
proper  search,  and  especially  where 
the  will  is  not  traced  out  of  his 
possession,  it  is  to  be  presumed 
that  it  was  destroyed  by  him  animo 
revocandi,  but  this  presumption  of 
revocation  may  be  met  by  declara- 
tions of  the  testator.  In  re  Keene, 
189  Mich.  97,  155  N.  W.  Rep.  514. 

99  Idley  v.  Bowen  (above). 

The  burden  of  proof  that  a 
lost  will  was  the  last  of  the  de- 
cedent, is  on  the  proponent  of  the 
lost  will.  Cassem  v.  Prindle, 
258  111.  11, 101  N.  E.  Rep.  241. 

1  Betts  v.  Jackson,  6  Wend.  173. 
Evidence  that  the  lost  will  was 

in  existence  at  the  time  of  the 
testator's  death,  but  disappeared 
since,  will  overcome  the  presump- 
tion. Griffith  v.  Higinbotom,  262 
111.  126,  104  N.  E.  Rep.  233,  Ann. 
Cas.  1915,  B.  250. 

2  See  paragraph  78. 


386 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


being  informed  of  the  loss  or  destruction  of  his  will,  failed  to 
make  another,  is  competent  but  slight  evidence  of  intent  to 
revoke;  and  this  presumption  may  be  rebutted  by  evidence 
that' the  loss  or  destruction  was  without  his  agency.3 

75.  Testator's  Declarations. 

Declarations  of  the  testator,  not  made  in  testamentary 
form,  are  not  competent  as  principal  evidence  of  a  revocation, 
because  the  statute  must  be  complied  with; 4  but  if  there  is 
direct  evidence  of  an  act  of  revocation,  such  as  the  statute 
requires,  or  if  such  an  act  is  legally  presumable,  for  instance, 
where  the  will  cannot  be  found, — evidence  of  his  declarations 
is  competent  to  repel  or  strengthen  the  presumption  of  can- 
cellation.5 A  declaration  which  is  a  narrative  of  a  past  act,— 
for  instance,  that  he  had  duly  revoked  his  will, — is  incom- 
petent, even  for  the  purpose  of  proving  the  intent.  It  is 
only  declarations  forming  part  of  the  res  gestce  which  are 
competent  for  such  purpose.6  Other  declarations,  before  or 


3  Steele  v.  Price,  5  B.  Monr.  58. 
In  order  to  prove  the  contents 

of  a  list  will  the  declarations  of  the 
testator  are  admissible,  but  only 
to  corroborate  the  testimony  of 
other  witnesses  as  to  their  knowl- 
edge of  the  contents  of  the  will. 
Griffith  v.  Higinbotom,  262  111. 
126,  104  N.  E.  Rep.  233,  Ann. 
Gas.  1915,  B.  250. 

4  Adams  v.  Winne,  7  Paige,  97. 
The  declarations  of  a  decedent 

made  after  the  execution  of  the 
will  cannot  be  used  to  overturn 
it.  Padgett  v.  Pence,  178  S.  W. 
Rep.  (Mo.)  App.  205. 

5  Bulkley  v.  Redmond,  2  Bradf. 
285;  Steele  v.  Price,  5  E.  Monr. 
(Ky.)  58. 

•Dan  v.  Brown,  4  Cow.  483; 
Sisson  v.  Conger,  1  N.  Y.  Supm. 
Ct.  (T.  &  C.)  569;  Waterman  v. 


Whitney,  11  N.  Y.  162.  Per  S. 
L.  SELDEN,  J.  Contra,  Youndt  v. 
Youndt,  3  Grant's  Gas.  140;  Law- 
yer v.  Smith,  8  Mich.  411.  Com- 
pare Sugden  v.  Ld.  St.  Leonards, 
L.  R.  1  Prob.  Div.  1-54;  Taylor 
Will  Case,  10  Abb.  Pr.  N.  S.  306; 
Keen  v.  Keen,  L.  R.  3  P.  &  D. 
105.  Under  the  freer  rules  of  evi- 
dence now  administered,  several 
important  qualifications  of  this 
rule  remain  to  be  considered,  viz.: 
Whether  the  res  gestce  do  not  in- 
clude the  custody  of  the  will  from 
the  time  of  execution  to  the  tes- 
tator's death,  and  whether  his 
declarations  characterizing  his  pos- 
session— as,  for  instance,  if  he 
should  use  the  will  as  evidence  in  a 
proceeding  against  the  party 
charged  with  obtaining  its  execu- 
tion by  duress,  or  if  he  delivered 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


387 


after  the  act,  are  not  usually  competent  as  bearing  on  the 
intent,  unless  the  question  of  intent  depends  on  unsoundness 
of  mind  or  undue  influence,  in  which  case  declarations  not 
too  remote  in  point  of  tune  are  competent  for  the  purpose  of 
proving  the  state  of  the  mental  powers.7 


it,  mutilated,  to  counsel  as  being 
revoked,  and  as  part  of  his  in- 
struction for  drawing  a  new  will, 
or  if  he  should  say  he  had  made  his 
will,  pointing  to  the  place  where 
it  would  be  found, — are  not  in  all 
cases  admissible,  not  as  principal 
evidence  of  execution  or  revoca- 
tion, but  as  material  to  the  am- 
bulatory existence  and  custody  of 
the  will  and  the  circumstances  of 
its  production  or  its  disappearance, 
and  as  competent  on  the  question 
of  intent,  without  connection  with 
the  testamentary  act.  The  Eng- 
lish rule  admits  the  declarations 
of  the  testator  to  show  the  con- 
tinuing existence  of  the  will  in 
his  possession  at  the  time  they 
were  made.  Sugden  v.  Ld.  St. 
Leonards,  L.  R.  1  Prob.  Div.  154, 
225.  Per  COCKBURN,  C.  J.  An- 
other principle  which  will  clear 
up  much  apparent  conflict  in  the 
language  of  the  cases  as  to  restora- 
tion, is,  that  revocation  does  not 
result  from  cancellation  without 
intent  to  revoke;  hence,  where  the 
testator  was  insane  or  delirious 
when  he  tore  or  cancelled  the 
paper  (and,  perhaps,  when  he 
acted  under  mistake  as  to  its 
validity) ,  declarations  afterwards 
intelligently  recognizing  it  as  his 
will  are  competent;  for  they  are 
not  offered  to  prove  a  testamentary 
act.  But  after  an  intelligent  re- 


vocation, a  rejoining  of  the  frag- 
ments, and  a  confirmation  of  the 
will,  on  a  change  of  purpose,  ought 
not  to  be  competent.  Compare 
Colagan  v.  Burns,  57  Me.  449; 
Patterson  v.  Hickey,  32  Geo.  156; 
Whart.  Ev.,  §  900,  and  cases  cited. 

The  acts  and  declarations  of  the 
testator  at  the  time  of  executing 
a  subsequent  will  as  to  his  inten- 
tion of  revoking  the  former  will 
are  admissible.  Murphy  v.  Clancy, 
177  Mo.  App.  429,  163  S.  W.  Rep. 
915. 

The  declarations  of  testator  at 
the  time  of  mutilation  or  destruc- 
tion of  his  will  are  admissible  to 
prove  his  intent  in  such  mutilation 
or  destruction.  Burton  v.  Wylde, 
261  111.  397,  103  N.  E.  Rep.  976. 

Where  a  testator  had  wholly 
or  partly  destroyed  or  mutilated, 
torn,  or  cancelled  his  will,  the  dec- 
larations made  by  him  at  the  time 
of  the  doing  of  such  act  are  ad- 
missible as  part  of  the  res  gestce  to 
show  with  what  intent  he  mutil- 
ated or  destroyed  the  instrument. 
Burton  v.  Wylde,  261  111.  397, 
103  N.  E.  Rep.  976;  Managle  r. 
Parker,  75  N.  H.  139,  71  Atl. 
Rep.  637,  24  L.  R.  A.  N.  S.  180, 
Ann.  Cas.  1912,  A.  269. 

7  Waterman  v.  Whitney  (above). 

In  a  will  contest,  the  declaration 
made  by  the  testator  in  a  deposi- 
tion made  prior  to  his  death  in  a 


388 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


76.  Subsequent  Testamentary  Act. 

Evidence  that  the  testator  executed  a  subsequent  will 
does  not,  without  proof  that  its  contents  were  inconsistent 
with  the  earlier,8  or  that  its  disappearance  was  by  spoliation 
committed  by  the  party  claiming  under  the  earlier  will,9 
prove  .a  revocation  of  the  earlier.  But  the  loss  of  the  later 
will  having  been  proved,  its  contents  may  be  shown  by 
parol,  for  the  purpose  of  proving  that  it  revoked  the  earlier 
will.10  Extrinsic  evidence  cannot  be  received  to  show  that 


law  suit  to  the  effect  that  his  at- 
torney has  custody  of  his  will,  is 
admissible  in  support  of  the  will, 
but  the  deposition  is  not  admissible. 
Rucker  v.  Carr,  163  S.  W.  Rep. 
(Tex.  Civ.  App.)  632. 

In  Illinois,  declarations  of  the 
testator  made  after  destroying 
or  mutilating  his  will  are  admis- 
sible to  show  intent.  Burton  v. 
Wylde,  261  111.  397,  103  N.  E. 
Rep.  976;  Boyle  v.  Boyle,  158 
111.  228,  42  N.  E.  Rep.  140. 

•Nelson  v.  McGiffert,  3  Barb". 
Ch.  165,  and  cases  cited.  It  is 
not  enough  that  the  later  will  be 
shown  to  be  different,  without 
showing  in  what  the  difference  con- 
sists. Dickinson  v.  Stidolph,  11 
C.  B.  N.  S.  357,  s.  c.,  103  Eng.  C. 
356. 

One  who  claims  that  a  subse- 
quent will,  since  destroyed,  re- 
voked a  prior  will  now  offered  for 
probate,  has  the  burden  of  proving 
that  the  subsequent  will  contained 
a  revocation  clause.  Connery  v. 
Connery,  175  Mich.  544,  141  N. 
W.  Rep.  615. 

Where  a  subsequent  will,  con- 
taining a  revocation  clause,  is 
refused  probate  on  account  of.  in- 


capacity and  incompetence  of  the 
testator,  the  entire  will,  including 
the  revocation  clause,  becomes  in- 
operative and  a  prior  will  may  then 
be  proved.  In  re  Goldsticker,  192 
N.  Y.  35,  84  N.  E.  Rep.  581,  18 
L.  R.  A.  N.  S.  99,  15  Ann.  Gas.  66. 

While  there  is  no  presumption 
that  a  will  drawn  by  a  lawyer  con- 
tains a  revocation  clause,  the  in- 
ference is  that  such  would  ordin- 
arily be  the  fact.  Matter  of  Wylie, 
162  N.  Y.  App.  Div.  574,  145 
N.  Y.  Supp.  133. 

One  who  claims  under  a  later 
will,  which  has  been  destroyed, 
has  the  burden  of  proving  by  a  pre- 
ponderance of  evidence  that  the 
later  will  contained  a  revoking 
clause.  Fitzpatrick's  App.,  87 
Conn.  579,  89  Atl.  Rep.  92. 

•Jones  v.  Murphy,  8  Watts  & 
S.  301 ;  Betts  v.  Jackson,  6  Wend. 
180. 

A  will  cannot  be  revoked  by  a 
subsequent  instrument  in  writing 
which  is  not  testamentary  in  char- 
acter. Moore  v.  Rowlett,  269 
111.  88,  109  N.  E.  Rep.  682,  L.  R. 
A.  1916,  E.  89,  Ann.  Gas.  1916,  E. 
718. 

10  Brown  v.  Brown,  8  Ellis  &  B 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


389 


the  cancellation  of  a  later  will  was  intended  to  revive  a 
former  one.11 

77.  Constructive  Revocations. 

Implied  or  constructive  revocations,  such  as  those  resulting 
from  marriage,  the  birth  of  issue,  etc.,  are  not  generally 
defined  and  limited  by  the  statutes,  the  terms  of  which 
usually  control  the  question  of  evidence.12  In  the  absence 
of  such  a  statute,  or  in  case  of  a  will  or  alleged  revocation 
before  the  statute,13  a  substantial  change  in  the  situation  of 
the  testator's  family  or  property,  or  both,  so  great  as  to 
raise  new  testamentary  duties,14  may  be  treated  by  the  court 
as  effecting  a  revocation;  or  if  there  is  evidence  of  an  equiv- 
ocal act  of  the  testator  tending  to  show  an  actual  intent  to 
revoke,  then  a  substantial  change  in  the  situation,  such  as 
might  have  furnished  a  reasonable  motive  for  revocation, 
may  be  given  in  evidence  to  support  the  inference  of  revoca- 


876,  s.  P.,  Matter  of  Griswold,  15 
Abb.  Pr.  299.  And  it  has  been 
held  that  an  express  revocation 
contained  in  it  may  be  thus  proved, 
although  the  disposing  provisions 
are  not  susceptible  of  proof.  Day 
v.  Day,  2  Green.  Ch.  549,  557;  but, 
on  the  contrary,  where  the  only  dis- 
posing provisions  in  the  later  will 
are  void  for  undue  influence,  it  is 
held  that  the  clause  of  revocation 
alone  is  not  sufficient  evidence  of 
the  testator's  intention  to  revoke 
a  former  will;  for  the  presumption 
is,  that,  if  the  second  will  is  found 
to  be  invalid,  the  testator  intended 
that  the  first  should  stand,  rather 
than  that  he  should  die  intestate. 
Rudy  v.  Ulrich,  69  Penn.  St.  177, 
s.  c.,  8  Am.  Rep.  238. 

A  mil  is  ambulatory,  inopera- 
tive, ineffectual  and  without  legal 
existence  until  the  death  of  the 


testator.  The  destruction  of  a 
subsequently  executed  will  contain- 
ing a  revocation  clause  will  oper- 
ate to  revive  a  former  will.  Moore 
v.  Rowlett,  269  111.  88,  109  N.  E. 
Rep.  682,  L.  R.  A.  1916,  E.  89, 
Ann.  Gas.  1916,  E.  718. 

11 2  N.  Y.  R.  S.  66,  §  53;  5  Centr. 
L.  J.  397,  and  cases  cited;  1  Redf. 
on  W.  317  (27);  contra,  Id.  (36). 
But  it  has  been  received  to  show 
that  a  later  was  not  intended  to 
supersede  a  former  will.  Dempsey 
v.  Lawson,  36  L.  T.  N.  S.  515. 

12  2  N.  Y.  R.  S.  64;  Lathrop  v. 
Dunlop,  4  Hun,  213,  aff'd  in  63 
N.    Y.    610.      Compare    Wheeler 
v.  Wheeler,  1  R.  I.  364. 

13  As  to  the  time  when  the  stat- 
ute took  effect  on  previous  wills, 
see  4  Bradf.  447,  8  Paige,  446. 

14  Sherry  v.  Lozier,  4  Bradf.  450, 
and  cases  cited. 


390  ACTIONS    BY    AND    AGAINST    HEIRS    AND 

tion; 15  but  evidence  of  the  relative  wealth  or  poverty  of 
members  of  the  family,  there  being  no  substantial  change 
in  situation,  is  not  competent.16 

At  common  law,  the  revocation  presumed  from  marriage 
and  birth  of  issue  otherwise  unprovided  for,  cannot  be  re- 
butted by  parol  evidence  of  intent.  The  question,  in  a 
court  of  law  at  least,  is  not  of  actual  intent,  but  the  revoca- 
tion is  a  legal  presumption.17  But  the  presumption  raised 
by  the  birth  of  a  child,  in  connection  with  other  circum- 
stances than  marriage,  is  not  at  common  law  conclusive.18 
Even  hi  case  of  constructive  revocation,  replication  cannot 
be  proved  by  parol.19 

78.  Action  to  Establish  Lost  or  Destroyed  Will.20 

The  proof  of  a  lost  or  destroyed  will  is  one  of  secondary 
evidence  exclusively;  and  the  law  accepts  the  best  evidence 
that  the  nature  of  the  case  admits,  as  to  its  valid  execution, 
its  contents,  its  existence  at  testator's  death,  and  its  loss; 21 
and  is  satisfied  if  it  tend  with  reasonable  certainty  to  estab- 
lish those  facts.22  But  the  proof  of  the  contents  must  be 

15  Betts  v.  Jackson,  6  Wend.  173,  21  Grant  v.  Grant,  1  Sandf.  Ch. 
176.  235. 

16  Id.       Compare     Warner     v.  The    right    to    probate    a    de- 
Beach,    4    Gray,    162;    Brush    v.  strayed    will    offered    by    parties 
Wilkins,  4  Johns.  Ch.  506.  with  full  knowledge  of  the  facts, 

17  Marston  v.  Roe,  8  Ad.  &  El.  will  not  be  defeated  merely  be- 
14,   s.  c.,  35  Eng.   C.  L.  303,   1  cause  of  a  long  delay  in  the  in- 
Wms.    Ex'rs,    195,    196,    1    Redf.  stitution    of    a    suit    to    establish 
on  W.  300,  n.  24;  and  see  Bloomer  such    will.      This    is,    however,    a 
v.  Bloomer,  2  Bradf.  339.  circumstance  to  be  considered  by 

18  Sherry  v.  Lozier,  4  Bradf.  453.      the  court.     Dudgeon  v.  Dudgeon, 
"Carey   v.   Baughn,    36    Iowa,      119   Ark.    128,    177    S.   W.   Rep. 

540,  s.c.,  14  Am.  Rep.  534.  402. 

20  Under  the  statute.     2  N.  Y.  22See    Everitt    v.    Everitt,    41 

Code  Civ.  Pro.,  §  1861.  Barb.  385,  387,  and  Sugden  v.  Ld. 

The  probate  court  has  jurisdic-  St.  Leonards,  L.  R.  1  Prob.  Div. 

tion    to    admit    to    probate    lost,  154,  239. 

destroyed     or     suppressed     wills.  In  an  action  to  establish  a  lost 

Prentice  v.  Crane,  234  111.  302,  84  will  the  precise  language  need  not 

N.  E.  Rep.  916.  be  proved,  as  long  as  the  substance 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  391 

clear  and  cogent,  though  it  need  not  always  be  complete.23 
To  prove  the  existence  of  the  will  at  the  time  of  testator's 
death,  direct  evidence  is  not  essential; 24  but  if  testator  had 
access  to  it  when  last  known,  its  existence  at  his  death  can- 
not be  inferred  from  his  declarations,  made  a  month  or  so 
previously,  that  he  had  it  in  his  possession.25  In  such  case 
the  presumption  rather  is  of  destruction  by  the  testator.26 
But  any  presumption  of  destruction  by  him,  arising  merely 
from  its  disappearance,  is  entirely  rebutted  by  evidence 
that  he  had  deposited  it  with  another  person,  and  did  not 
afterwards  have  access  to  it.27 

Where  actual  destruction  is  not  shown,  parol  evidence  is 
not  admissible  until  it  has  been  proved  that  diligent  search 
for  the  will  has  been  made  by  or  at  the  request  of  the  party 
interested,  at  the  place  where  it  is  most  likely  it  would  be 
found, — as  for  instance  (if  last  traced  to  testator's  posses- 
sion), search  among  his  papers  at  his  usual  place  of  res- 
idence.28 The  mere  fact  that  a  person  having  an  adverse 
interest  had  opportunities  of  access  to  the  will  while  it  was 
in  the  testator's  custody,  does  not  raise  a  presumption  of 
fraudulent  destruction;  29  but  the  fact  that  when  last  known 
of  it  was  in  the  control  of  such  a  person,  may  sustain  that 

is   established.      Jones    v.    Casler,  tion  of  this  is  the  rule  that  the  re- 

139  Ind.  382,  38  N.  E.  Rep.  812,  yoking  clause  may  be  proved,  to 

47  Am.  St.  Rep.  274.  defeat  a  prior  will,  although  the 

23  Compare,  on  this  point,  Sug-  disposing  clauses  are  not  capable 

den  v.  Ld.  St.  Leonards,  L.  R.  1  of  proof.    See  also  Redf.  Am.  Cas. 

Prob.    Div.    154,    and    Davis    ».  on  L.  of  Wills,  217,  n. 

Sigourney,  8  Mete.   (Mass.)   487,  "Schultz  ».  Schultz,  35  N.  Y. 

which   exhibit    the   two   opposing  653. 

views.     The  true  principle  seems  25Knapp  v.  Knapp,   10  N.  Y. 

to  be  that  entire  provisions  may  276. 

be  established,  if  shown  to  have  M  Paragraph  74. 

been  not  dependent  on  nor  affected  a  Schultz  v.  Schultz  (above), 

by  the  portion  which  cannot  be  ^Dan  y.  Brown,  4  Cow.  491. 

proved — except  where  the  proceed-  w  It  is  not  even  enough  to  go  to 

ing  is  to  establish  the  will  under  the  jury.     Knapp  v.   Knapp,   10 

a     statute     which     requires     the  N.  Y.  276,  280. 
whole  to  be  proved.     An  illustra- 


392 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


conclusion.30  Evidence  that  the  testator  gave  it  into  the 
custody  of  another  who  never  parted  with  its  possession, 
but  locked  it  up,  and  after  testator's  death  could  not  find 
it,  is  enough,  for  it  proves  either  its  existence  at  his  death 
or  fraudulent  destruction  in  his  lifetime.31  Direct  evidence 
of  actual  intent  to  defraud  any  particular  person,  is  not 
essential.  The  fraud  contemplated  by  the  statute  is  the 
unauthorized  defeating  of  the  will.32  Evidence  of  fraud  or 
undue  influence,  inducing  the  testator  to  destroy  the  will 
himself  is  sufficient,33  but  a  destruction  by  his  direction  if 
freely  given  is  not  enough,  even  though  the  destruction  was 
not  so  performed  as  to  amount  to  a  revocation  under  the 
statute.34  Unless  the  statute  otherwise  provides,35  the  con- 
tents of  a  lost  or  destroyed  will  may  be  proved  by  a  single 
witness.36  Declarations,  written  or  oral,  made  by  the  testa- 
tor, whether  before,  at,  or  after  the  execution  of  the  will,  are 
competent  secondary  evidence  of  its  contents; 37  but  the  con- 


*°  Jones  v.  Murphy,  8  Watts  & 
S.  299. 

31  Schultz  v.  Schultz  (above),  and 
see  Hildreth  v.  Schillenger,  10  N.  J. 
Eq.  (2  Stockt.)  196. 

"Id. 

33  Voorhees  v.  Voorhees,  39  N.  Y. 
463,  affi'g  50  Barb.  119. 

34  Timon  v.  Claffy,  45  Barb.  438. 
55  N.  Y.  Code  Civ.  Pro.,  §  1865, 

requires  the  provisions  to  be 
"clearly  and  distinctly  proved,  by 
at  least  two  credible  witnesses,  a 
correct  copy  or  draft  being  deemed 
equivalent  to  one  witness." 

36  Sugden  v.  Ld.  St.  Leonards, 
L.  R.  1  Prob.  Div.  154,  and  see 
Fctherly  v.  Waggoner,  11  Wend. 
599.  Even  though  he  himself 
destroyed  it  under  excusable  mis- 
take, and  he  is  residuary  legatee. 
Wyckoff  v.  Wyckoff ,  1  C.  E.  Green, 
401.  That  all  the  witnesses  must 


be  produced  or  accounted  for — 
see  Thornton  v.  Thornton,  39 
Vt,  122,  s.  c.,  6  Am.  L.  Reg.  N.  S. 
341. 

A  lost  will  may  be  proved  by  a 
single  witness  who  read  it  through 
and  remembers  its  contents.  Jac- 
ques v.  Horton,  76  Ala.  238. 

37  Clark  v.  Turner,  50  Neb.  290, 
69  N.  W.  Rep.  843;  Sugden  r. 
Ld.  St.  Leonards,  L.  R.  1  Prob. 
Div.  154,  225,  241;  and  see  John- 
son v.  Lyford,  L.  R.  1  P.  &  D.  546. 
The  testimony  of  a  witness  as  to  the 
contents  of  a  will,  his  knowledge 
being  derived  from  the  testator's 
reading  the  will  to  him,  and  not 
from  having  inspected  it,  is  in 
effect  only  testimony  as  to  the 
testator's  declarations.  Clark  v. 
Turner  (supra). 

Declarations  of  a  testator,  shortly 
before  his  death,  as  to  his  manner 


NEXT   OF    KIN,    DEVISEES    AND    LEGATEES  393 

tents  of  a  lost  will  cannot  be  proved  solely  by  the  declara- 
tions of  the  testator,  though  such  declarations  are  admissible 
to  corroborate  more  direct  evidence. 


79.  Foreign  Will. 

A  foreign  will  is  proved  by  producing  in  the  same  way  as 
a  domestic  will  a  probate  by  a  probate  court  within  the 
State,  granted  either  upon  original  proof  or  upon  produc- 
tion there  of  an  exemplified  copy  of  a  foreign  probate.  An- 
cillary probate  thus  granted  within  the  State,  is  equivalent 
as  evidence  to  original  probate  here.38  The  foreign  exem- 
plification, even  if  itself  receivable  in  evidence,  by  virtue  of 
the  act  of  Congress,39  and  competent  on  the  question  of  the 
rights  and  liabilities  of  the  parties  arising  in  such  other 
State,40  cannot  be  received  for  the  purpose  of  affecting  title 
to  land  within  the  State  (unless  expressly  authorized  by  the 
statutes  of  the  State);  but  if  it  has  not  been  recorded  in  a 
probate  court  within  the  State,  the  original  will  must  (for 

of  disposing  of  his  property,  are          The  law  of  the  State  of  the  domi- 

admissible   to   show   the   contents  cile  of  the  testator  determines  the 

of  an  alleged  lost  will,  and  whether  validity  of  the  will  as  a  distribution 

it  remained  unrevoked  at  his  death,  of  personalty.    Matter  of  Martin, 

where  the  existence  of  such  lost  will  173  App.  Div.  1,  158  N.  Y.  Supp. 

must  be  proved  to  establish  the  915. 

right  of  the  contestants  of  another          40  Robertson  v.  Barbour,  6  T.  B. 

will  to  maintain  their  action.    Me-  Monr.  (Ky.)  523. 

Donald    r.    McDonald,    142    Incl.          Wills  executed  by  persons  domi- 

55,  41  N.  E.  Rep.  336.  ciled  in  a  State  are  governed  by  the 

38  Bromley   v.    Miller,   2   Supm.  laws  of   that   State  although   ex- 
Ct.   (T.  &  C.)  575;  Townsend  v.  ecuted  beyond  its  territorial  limits. 
Downer,  32  Vt.  183,  216;  Miller  Worsham  v.  Ligon,  144  Ga.  707, 
v.  James,  L.  R.  3  P.  &  D.  4.  87  S.  E.  Rep.  1025. 

39  U.  S.  R.  S.,  §§  905,  906.    In         Even  though  a  person  is  a  resi- 
such  case  the  recital  in  the  record  dent  of  this  country  he  may  make 
of    notice    of    the    proceedings    is  a  will  according  to  the  law  of  a 
prima  facie  evidence  that  it  was  temporary  domicile  and   the  law 
given,  but  not  conclusive  if  juris-  will  govern.     Matter  of  Connell, 
diction  depended  on  it.    Clark  v.  155   N.   Y.   Supp.  397,  92  Misc. 
Blackington,  110  Mass.  369,  374.  324. 


394  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

such  purpose)  be  produced,  or  its  loss  accounted  for  so  as  to 
admit  secondary  evidence.41 

80.  Ancient  Will. 

An  ancient  will  is  competent  prima  fade  evidence,  with- 
out probate,  if  it  appear  that  the  testator  is  dead,  and  that 
it  is  regular  on  its  face,  that  is  apparently  executed  with 
legal  formalities,  and  is  shown  to  have  come  from  the  proper 
custody,  if  more  than  thirty  years  have  elapsed  since  the 
testator's  death,42  and  if  it  is  corroborated  by  other  circum- 
stances, such  as  the  fact  that  possession  has  been  contin- 
uously held  under  it.  Mere  efflux  of  time  is  not  enough  to 
dispense  with  proof  of  execution,  but  it  is  not  always  essen- 
tial to  show  possession.  It  is  enough  if  such  account  be 
given  of  it  as  may,  under  the  circumstances,  be  reasonably 
expected,  and  as  will  afford  the  presumption  that  it  is  gen- 
uine.43 Inability  to  prove  handwriting  should  be  shown.44 
If  the  original  is  lost,  its  antiquity  and  contents  may  be 
proved  by  secondary  evidence.45  Evidence  of  the  acts  and 
declarations  of  third  persons,  when  in  posssesion  of  the  lands, 
are  competent  to  prove  the  continued  possession  under  the 
will. 

41  Graham  v.  Whitely,  26  N.  J.  L.  petent    on    the    question   of    age. 
260.    Whether  the  original  is  com-  Enders  v.  Sternbergh  (below), 
petent  without  such  probate,  de-  A  will  thirty  years  old  is  pre- 
pends  on  the  local  statutes.     See  sumed  to  be  without  living  wit- 
Ives  v.  Allyn,  12  Vt.  589;  Barstow  nesses  to  its  execution.    Matter  of 
v.  Sprague,  40  N.  H.  27.  Hall,    154   N.   Y.   Supp.   317,   90 

The  will  of  a  person  domiciled  Misc.  216. 

in    Louisiana    must    be    probated  43  This  is  the  New  York  rule, 

there,  irrespective  of  the  fact  that  Enders  v.  Sternbergh,  2  Abb.  Ct. 

the  will  was  executed  in  a  foreign  App.    Dec.    36,    43;    Jackson    v. 

country.      Drysdale's    Succ.,    121  Luquere,    5    Cow.    211.      Contra, 

La.  816,  46  So.  Rep.  873.  Merrill  v.  Sawyer,  8  Pick.  297. 

42  Staring  v.  Bowen,  6  Barb.  109.  44  Northrop   v.    Wright,    7    Hill 
The  appearance  of  the  paper  itself,  (N.  Y.),  476. 

and  the  date,  are,  in  the  absence  of          45  Enders  v.  Sternbergh,  2  Abb. 
anything  to  raise  suspicion,  com-      Ct.    App.    Dec.    42;      Jackson    v. 

Van  Dusen,  5  Johns.   144. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


395 


X.  EXTRINSIC  EVIDENCE  AFFECTING  WILLS 

81.  Effect  of  the  Statute  of  Wills. 

The  Statute  of  Wills,  by  requiring  testamentary  acts  to  be 
expressed  and  authenticated  in  writing,  precludes  us  from 
treating  oral  declarations  as  a  testamentary  act,  or  even  as 
any  part  of  such  an  act.46  Every  disposition  which  the  testa- 
tor makes  must  be  embodied  in  a  writing  that  conforms  to 
the  statute.  Extrinsic  evidence  cannot  establish  a  provision 
shown  to  have  been  omitted  by  mistake,  nor  even  supply 
any  essential  or  vital  part  left  blank,  in  a  provision  the  frame 
of  which  was  inserted  by  the  testator.47  A  will  may  be  con- 
strued in  connection  with  another  writing  to  which  it  refers;  ** 
but  it  cannot,  even  by  expressing  an  intention  to  do  so,  make 
an  unattested  instrument  a  part  of  itself,  so  as  to  effect  a 
testamentary  disposition  without  compliance  with  the 
statutory  formalities.49 


46  Mann  v.  Mann,  14  Johns.  1, 
affi'g  1  Johns.  Ch.  231. 

Oral  statements  by  a  testator 
made  before  the  time  of  making 
his  will  are  not  admissible  to  show 
his  intention.  Cochran  v.  Lee,  27 
Ky.  Law  Rep.  64,  84  S.  W.  Rep. 
337. 

There  being  no  ambiguity  in  the 
language  employed,  parol  proof 
of  the  declaration  of  the  deceased 
as  to  his  purpose  must  be  excluded. 
Scott  v.  Scott,  137  Iowa,  239,  114 
N.  W.  Rep.  881,  126  Am.  St.  Rep. 
277,  23  L.  R.  A.  N.  S.  716. 

47  Per  SHAW,   C.  J.,  Tucker  v. 
Seaman's  Aid  Society,  7  Mete.  205. 

Parol  evidence  cannot  be  re- 
ceived to  give  a  will  operative  ele- 
ments, language,  or  provisions  not 
in  it  before;  it  is  only  admissible 
for  the  purpose  of  affording  light 
whereby  what  is  in  the  will  may 


be  read,  understood  and  applied. 
In  re  Root,  187  Pa.  118,  40  Atl. 
Rep.  818;  Bower  v.  Bower,  5  Wash. 
225,  31  Pac.  Rep.  598;  Gilmore  v. 
Jenkins,  129  Iowa,  686,  106  N.  W. 
Rep.  193,  6  Ann.  Cas.  1008. 

Extrinsic  evidence  cannot  be 
introduced  where  there  is  no  am- 
biguity in  the  will.  Scott  v.  Roeth- 
lisberger,  178  Mich.  581, 146  N.  W. 
Rep.  307;  In  re  McVeigh,  181  Mo. 
App.  566,  164  S.  W.  Rep.  673; 
Dale  v.  Dale,  241  Pa.  234,  88  Atl. 
Rep.  445. 

A  gift  cannot  be  cut  down  by 
anything  which  does  not,  with 
reasonable  certainty,  indicate  an 
intention  to  that  effect.  Goffe  v. 
Goffe,  37  R.  I.  542,  94  Atl.  Rep.  2, 
Ann.  Cas.  1916,  B.  240. 

48  Jackson  v.  Babcock,  12  John. 
389. 

*  Langdon  v.  Astor,  16  X.  Y.  9; 


396 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


82.  Legitimate  Objects  of  Extrinsic  Evidence. 

Notwithstanding  these  restrictions,  extrinsic  evidence  is 
freely  admitted  for  certain  purposes,  which  in  a  practical 
aspect  may  be  defined  as  four,  viz.  To  aid  in  reading,  testing, 
applying,  and  executing  the  testamentary  declaration  of 
intention.50 


Thompson  v.  Quimby,  2  Bradf. 
449;  Clayton  v.  Ld.  Nugent,  13 
M.  &  W.  200. 

A  memorandum  which  forms  no 
part  of  the  will,  and  is  not  attested, 
is  merely  a  parol  declaration  of  the 
testator,  introduced  to  aid  in  inter- 
preting the  will,  and  as  such  is 
extrinsic  evidence.  Where  the  lan- 
guage of  the  will  is  sensible,  in- 
telligible and  clear,  extrinsic  proof 
cannot  vary  it.  Williams  v.  Free- 
man, 83  N.  Y.  561. 

Where  there  is  no  ambiguity  on 
the  face  of  a  will,  taken  in  connec- 
tion with  the  surrounding  facts, 
so  that  there  is  no  doubt  as  to  the 
subject-matter  of  a  bequest,  or  as 
to  the  identity  of  a  legatee,  no 
extrinsic  memorandum  can  be  ad- 
mitted to  change  the  intention 
expressed.  Lincoln  v.  Perry,  149 
Mass.  368,  21  N.  E.  Rep.  671,  4 
L.  R.  A.  215;  Best  v.  Berry,  189 
Mass.  510,  75  N.  E.  Rep.  743,  109 
Am.  St.  Rep.  651. 

No  effect  can  be  given  to  a  sealed 
letter  of  dispositive  and  testamen- 
tary character  found  with  the  will, 
as  a  part  of  the  will,  even  if 
the  evidence  offered  proves  that 
it  was  in  existence  and  known 
to  the  testator  at  the  time  the  will 
was  executed.  The  letter  must  be 
executed  in  conformity  with  the 
statute  regulating  the  testamen- 


tary disposition  of  property.  Bryan 
v.  Bigelow,  77  Conn.  604,  60  Atl. 
Rep.  266,  107  Am.  St.  Rep.  64. 

A  letter  which  explains  an  ob- 
scure provision  in  a  codicil  made 
after  the  letter  was  written  is  ad- 
missible for  the  purpose  of  ascer- 
taining the  intention  of  the  testator. 
Ladies'  Union  Benev.  Soc.  v.  Van 
Natta,  43  N.  Y.  Misc.  217, 88  N.  Y. 
Supp.  413. 

50  Kent's  statement  of  the  rule,  in 
the  leading  American  case  (Mann 
v.  Mann,  1  Johns.  Ch.  281),  is, 
"Parol  evidence  cannot  be  ad- 
mitted to  supply  or  contradict, 
enlarge  or  vary,  the  words  of  a  will, 
nor  to  explain  the  intention  of  the 
testator,  except  in  Vwo  specified 
cases:  1,  where  there  is  a  latent 
ambiguity,  arising  dehors  the  will, 
as  to  the  person  or  subject  meant 
to  be  described;  and  2,  to  rebut 
a  resulting  trust.  All  the  cases 
profess  to  proceed  upon  one  or  the 
other  of  these  grounds." 

Wharton  (2  Whart.  Ev.,  §  992) 
lays  down  the  rule  thus:  "With 
two  exceptions,  evidence  of  the 
testator's  intentions  is  inadmis- 
sible in  explanation  of  a  will. 
These  exceptions  are  as  follows: 
(1)  What  is  said  at  the  time  of 
the  execution  and  attestation  is 
admissible  as  part  of  the  res  gesta, 
though  not  to  contradict  the  will. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


397 


The  confusion  in  the  cases  upon  this  subject  arises  partly 
from  the  difficulty  of  preserving  the  distinction  between 


(2)  When  it  is  doubtful  as  to  which 
of  two  or  more  extrinsic  objects 
a  provision,  in  itself  unambiguous, 
is  applicable,  then  evidence  of  the 
testator's  declarations  of  intention 
is  admissible;  not,  indeed,  to  in- 
terpret the  will,  for  this  is  on  its 
face  unambiguous,  but  to  inter- 
pret the  extrinsic  objects." 

Wigram's  seven  rules  are  (Wigr. 
Ex.  Ev.):  "I.  A  testator  is  always 
presumed  to  use  the  words  in 
which  he  expresses  himself  ac- 
cording to  their  strict  and  primary 
acceptation,  unless  from  the  con- 
text of  the  will  it  appears  that  he 
has  used  them  in  a  different  sense; 
in  which  case  the  sense  in  which  he 
thus  appears  to  have  used  them 
will  be  the  sense  in  which  they 
are  to  be  construed. 

"II.  Where  there  is  nothing  in 
the  context  of  a  will,  from  which  it 
is  apparent  that  a  testator  has 
used  the  words  in  which  he  has 
expressed  himself  in  any  other 
than  their  strict  and  primary 
sense,  and  where  his  words  so 
interpreted  are  sensible  with  refer- 
ence to  extrinsic  circumstances,  it 
is  an  inflexible  rule  of  construction, 
that  the  words  of  the  will  shall  be 
interpreted  in  their  strict  and 
primary  sense,  and  in  no  other, 
although  they  may  be  capable  of 
some  popular  or  secondary  inter- 
pretation, and  although  the  most 
conclusive  evidence  of  intention 
to  use  them  in  such  popular  or 
secondary  sense  be  tendered. 

"III.  Where  there  is  nothing  in 


the  context  of  a  will,  from  which 
it  is  apparent  that  a  testator  has 
used  the  words  in  which  he  has 
expressed  himself  in  any  other  than 
their  strict  and  primary  sense,  but 
his  words  so  interpreted,  are  in- 
sensible with  reference  to  extrinsic 
circumstances,  a  court  of  law  may 
look  into  the  extrinsic  circum- 
stances of  the  case,  to  see  whether 
the  meaning  of  the  words  be  sen- 
sible .in  any  popular  or  secondary 
sense,  of  which,  with  reference  to 
these  circumstances,  they  are  ca- 
pable. 

"IV.  Where  the  characters  in 
which  a  will  is  written  are  difficult 
to  be  deciphered,  or  the  language  of 
the  will  is  not  understood  by  the 
court,  the  evidence  of  persons 
skilled  in  deciphering  writing,  or 
who  understand  the  language  in 
which  the  will  is  written,  is  ad- 
missible to  declare  what  the  char- 
acters are,  or  to  inform  the  court 
of  the  proper  meaning  of  the  words. 

"V.  For  the  purpose  of  deter- 
mining the  object  of  a  testator's 
bounty,  or  the  subject  of  disposi- 
tion, or  the  quantity  of  interest 
intended  to  be  given  by  his  will,  a 
court  may  inquire  into  every  ma- 
terial fact  relating  to  the  person 
who  claims  to  be  interested  under 
the  will,  and  to  the  property  which 
is  claimed  as  the  subject  of  disposi- 
tion, and  to  the  circumstances  of 
the  testator  and  of  his  family  and 
affairs,  for  the  purpose  of  enabling 
the  court  to  identify  the  person  or 
thing  intended  by  the  testator, 


398 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


receiving  extrinsic  evidence  to  establish  the  testamentary 
intention,  which  is  never  allowable — and  receiving  it  to 
enable  us  to  understand  the  intention  he  has  expressed, 
which  is  always  allowable.  No  extrinsic  evidence  to  inter- 
pret the  will,  is  admissible  except  as  light  thrown  upon  the 
words  of  the  will;  and  the  only  intention  of  the  testator  which 
the  court  can  sanction,  is  that  which  they  can  derive  through 
the  will  itself,  it  may  be  by  the  aid  of  such  light.  There  is 
a  class  of  cases,  in  which  direct  evidence  of  the  testator's 
declarations  of  his  intention  can  be  received,  to  enable  us 
to  apply  a  provision  of  the  will  accordingly,  viz.,  in  cases 
where  there  are  several  persons  or  things  equally  answering 
the  designation, — but  these  cases  are  not  hi  truth  an  excep- 
tion to  the  rule,  for  the  declarations  are  not  allowed  to  affect 
the  intention,  but  only  to  show  "what  he  meant  to  do"; 
and  when  we  revert  to  the  will,  we  may  perceive  from  the 
will  that  he  has  done  it  by  the  general  words  used,  if  in  their 


or  to  determine  the  quantity  of 
interest  he  has  given  by  his  will. 

"The  same  (it  is  conceived)  is 
true  of  every  other  disputed  point 
respecting  which  it  can  be  shown 
that  a  knowledge  of  extrinsic  facts, 
can,  in  any  way,  be  made  ancillary 
to  the  right  interpretation  of  a 
testator's  words. 

"VI.  Where  the  words  of  a  will, 
aided  by  evidence  of  the  material 
facts  of  the  case,  are  insufficient 
to  determine  the  testator's  mean- 
ing, no  evidence  will  be  admissible 
to  prove  what  the  testator  in- 
tended, and  the  will  (except  in  cer- 
tain special  cases,  see  Proposi- 
tion VII.)  will  be  void  for  uncer- 
tainty. 

"VII.  Notwithstanding  the  rule 
of  law  which  makes  a  will  void 
for  uncertainty,  where  the  words, 
aided  by  evidence  of  the  material 


facts  of  the  case,  are  insufficient 
to  determine  the  testator's  mean- 
ing, courts  of  law,  in  certain  special 
cases,  admit  extrinsic  evidence  of 
intention  to  make  certain  the  per- 
son or  thing  intended,  where  the 
description  in  the  will  is  insufficient 
for  the  purpose. 

"These  cases  may  be  thus  de- 
fined,— where  the  object  of  a 
testator's  bounty,  or  the  subject 
of  disposition  (i.  e.,  the  person  or 
thing  intended),  is  described  in 
terms  which  are  applicable  in- 
differently to  more  than  one  person 
or  thing,  evidence  is  admissible 
to  prove  which  of  the  persons  or 
things  so  described  was  intended 
by  the  testator." 

If  the  language  used  in  a  will  has 
a  clear  meaning,  it  must  be  ac- 
cepted as  disclosing  the  intent  of 
the  testator,  and  this  intent  must 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


399 


ordinary  sense  they  properly  bear  that  construction.51  If, 
after  understanding  the  intention,  we  do  not  find  that  the 
will  has  declared  it  with  the  statute  formalities,  the  court 
cannot  give  it  effect,  no  matter  how  clear  may  be  the  ev- 
idence. 


be  upheld  if  consistent  with  the 
accepted  rules  of  law.  Nolan  v. 
Nolan,  169  App.  Div.  372,  154 
X.  Y.  Supp.  355. 

51  Ld.  Abinger  in  Doe  ex  dem. 
Hiscocks  v.  Hiscocks,  5  M.  &  W. 
363. 

The  intention  of  the  testator 
must  be  gathered  from  the  will 
itself.  I,a  Tourette  v.  La  Tourette, 
15  Ariz.  200,  137  Pac.  Rep.  426, 
Ann.  Cas.  1915,  B.  70. 

Extrinsic  evidence  to  establish 
testamentary  intention  is  not  allow- 
able. Duensing  v.  Duensing,  112 
Ark.  362,  165  S.  W.  Rep.  956. 

Extrinsic  evidence  cannot  be 
introduced  to  contradict  the  terms 
of  the  will.  Hopper  v.  Sellers,  91 
Kan.  876,  139  Pac.  Rep.  365. 

In  construing  a  will  the  chief 
purpose  of  the  courts  is  to  ascertain 
the  intention  of  the  testator  and 
to  give  to  the  will  the  interpreta- 
tion and  meaning  which  the  testa- 
tor intended,  so  that  such  inten- 
tion may  be  carried  out  whenever 
it  can  be  done  without  violating 
some  established  rule  of  law  or 
public  policy.  To  find  the  true 
intention  of  the  testator,  the  will 
and  codicils  and  all  of  their  parts 
must  be  construed  together. 
Spencer  v.  Spencer,  268  111.  332, 
109  N.  E.  Rep.  300. 

Where  the  intention  of  the  tes- 
tator is  plain,  the  court  may  and 


should  go  to  the  uttermost  limits 
of  construction  authority  to  dis- 
cover it  expressed  in  the  language 
used  to  that  end.  Boeck's  Will, 
160  Wis.  577,  152  N.  W.  Rep.  155, 
L.  R.  A.  1915,  E.  1008. 

A  fundamental  rule  in  the  con- 
struction of  wills  is  to  consider 
the  whole  scope  and  plan  of  the 
testator  and  to  compare  the  va- 
rious provisions  with  one  another, 
construing  them  if  possible  so 
that  all  can  stand.  Nixon  o. 
Nixon,  268  111.  524,  109  N.  E.  Rep. 
294. 

In  construing  wills,  the  intent  of 
the  testator  must  be  found  from 
the  entire  instrument.  Edwards  v. 
Mudge,  186  Mich.  71,  152  N.  W. 
Rep.  902;  Goffe  v.  Goffe,  37  R.  I. 
542,  94  Atl.  Rep.  2,  Ann.  Cas. 
1916,  B.  240;  Crowell  v.  Rose,  38 
R.  I.  93,  94  Atl.  Rep.  683;  Peaslee 
v.  Rounds,  77  N.  H.  544,  94  Atl. 
Rep.  263. 

The  testator's  right  to  dispose 
of  his  property  by  will  and  to  whom 
he  sees  fit,  has  no  limitation  except 
that  he  cannot  dispose  of  those 
rights  given  by  statute  to  the 
widow,  and  the  disposition  must 
be  such  as  not  to  offend  the  settled 
principles  of  morality  or  public 
policy.  Canaday  v.  Baysinger, 
170  Iowa,  414,  152  N.  W.  Rep. 
562. 


400  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

83.  Reasons  for  Its  Liberal  Admission. 

In  favor  of  the  liberal  application  of  the  rule  allowing 
extrinsic  evidence,  it  may  be  said  that  text  writers  of  high 
authority  52  declare  that  the  rules  for  the  admission  and  ex- 
clusion of  parol  evidence  in  regard  to  wills  are  essentially 
the  same  which  prevail  in  regard  to  contracts  generally; 
and  it  may  be  further  urged  that  the  right  to  dispose  by  will 
is  of  great  importance; 53  that  it  is  commonly  exercised  under 
circumstances  unfavorable  to  formality  and  exact  expression; 
and  that  the  court  ought  to  have  every  aid  that  the  conduct 
and  declarations  of  the  testator  can  give,  to  guide  in  ascer- 
taining his  intention. 

84.  Reasons  for  Its  Strict  Exclusion. 

On  the  other  hand,  it  is  to  be  considered  that  the  rules 
allowing  parol  evidence  in  aid  of  the  interpretation  of  con- 
tracts are  not  fully  applicable  to  wills,  for  they  rest  on  sev- 
eral reasons  that  are  foreign  to  these  instruments.  1.  A  will 
is  not  a  transaction  between  parties,  but  a  silent  and  private 
act;  and  the  principle  of  good  faith  which  may  bind  a  con- 
tracting party  by  what  passed  in  conversation,  does  not 
justify  disposing  of  the  rights  of  heirs  and  next  of  kin  by 
what  may  have  fallen  from  their  ancestor.  2.  Nor  is  a  will 
a  grant  or  effective  act  during  the  testator's  life,  but  a  rev- 
ocable expression  of  intention,  made  frequently  under  cir- 
cumstances likely  to  involve  secrecy,  if  not  fickleness  and 
change;  and  the  law  does  not  bind  a  man  by  his  expressions 
of  intention,  much  less  by  his  oral  declarations  that  he  has 

52Redf.   on  W.  496,   1   Greenl.  Benev.    Soc.    v.    Van    Natta,    43 

Ev.,  §  287.     As  a  practical  guide,  N.  Y.  Misc.  217,  88  N.  Y.  Supp. 

this  maxim  would  be  very  mislead-  413. 

ing.    It  would  be  less  inexact  to  53  See  Maine's  Anc.  Law,  194. 

compare  wills  to  statutes.  A  will  should  receive  the  most 

Where  the  intention  of  the  tes-  favorable  construction  which  will 

tator  is  left  obscure  and  uncertain  accomplish  the  purpose  intended, 

it  is  competent  to  resort  to  extrin-  Chew  v.  Sheldon,  214  N.  Y.  344, 

sic  evidence  in  order  to  find  the  108  N.  E.   Rep.   552,  Ann.  Cas. 

real    intention.       Ladies'     Union  1916,  D.  1268. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  401 

expressed  certain  intentions  in  a  revocable  writing.54  3.  It 
is  a  matter  of  common  observation  that  testators  are  in- 
stinctively disposed  to  shroud  their  testamentary  acts  in 
secrecy,  and  disguise  their  intentions,  and  to  baffle  with 
equivocation  or  misrepresentation  the  importunities  of  the 
expectant  and  the  inquisitiveness  of  the  curious.  The  law 
regards  this  concealment  as  a  right  of  the  testator;  and  even 
positive  deceit  by  him,  however  questionable  morally,  is  not 
a  legal  wrong  unless  fraud  is  accomplished  by  it.55  There- 
fore the  testator's  representations  as  to  what  he  has  or  has 
not  done,  much  more  those  as  to  what  he  intends,  fail  to 
afford  any  substantial  presumption  as  to  the  testamentary 
act.  4.  Besides  this  absence  of  reasons  for  admitting  extrin- 
sic evidence  so  freely  as  in  cases  of  contracts,  the  objections 
to  hearsay  evidence  apply  in  the  strongest  manner  in  many 
cases;  and  the  fact  that  the  controversy  in  which  such  ev- 
idence is  offered  usually  arises  between  those  who  stood  in 
very  unequal  degrees  of  personal  intimacy  with  the  testator, 
and  that  his  own  lips  are  sealed  by  death,  render  the  resort 
to  such  evidence  peculiarly  liable  to  abuse,  which  it  is  the 
object  of  the  statute  to  avoid  by  requiring  every  testament- 
ary act  to  be  expressed  in  a  written  and  authenticated  will. 
Such  considerations  as  these  have  led  the  courts  in  recent 
years  to  restrict  the  admission  of  extrinsic  evidence  within 
the  limits  I  shall  now  endeavor  to  indicate.56 

54  If  the  testator  bound  himself  possible  wills  cannot  be  pieced  out 

by  a  promise,  it  is  to  be  enforced,  by  such  extrinsic  evidence,  which 

if  at  all,  as  a  contract.    Ridley  v.  at  best  is  very  unreliable.     Leh- 

Ridley,  11  Jur.  N.  S.  475;  and  see  noff  v.  Theine,  184  Mo.  346,  83 

50  N"  Y.  88;  McGuire  v.  McGuire,  S.  W.  Rep.  469. 

11  Bush  (Ky.),  142.  M  Earlier  cases,  and  not  a  few 

85  See  Stickland  v.  Aldridge,  9  later  ones  founded  on  earlier  ml- 

Ves.  516.  ings,   admit   such   evidence   more 

What  the  testator  told  outsiders  freely,  and  it  will  not  be  difficult 

after  the  will  was  executed  as  to  to  find  cases  to  the  contrary  of 

his  intentions  with  respect  to  his  some  of  the  propositions  stated  in 

property  is  not  admissible.     Prop-  the  text  in  this  connection,  but  I 

erly   executed  wills    do  not  need  confine  myself  to  a  statement  of 

such  help,   and   defective   or  im-  the  rule,  and  a  selection  of  cases 


402  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

85.  Exceptional  Rule  as  to  Evidence  in  Rebuttal. 

The  considerations  to  which  I  have  adverted,  however, 
it  will  be  seen  do  not  militate  against  impeaching  or  dis- 
proving the  validity  of  the  testamentary  act;  nor,  on  the 
other  hand,  against  evidence  tending  to  show  that  the  in- 
tention was  really  just  what  is  expressed  on  the  face  of  the 
will ;  and  hence,  hi  this  class  of  cases,  there  is  peculiar  prac- 
tical importance  in  the  principle  of  evidence,  that  when  one 
party  may  and  does  attempt  to  prove  a  fact,  the  other  party 
thereby  acquires  a  right  to  adduce  evidence  to  the  contrary. 
It  will  be  seen  that  the  method  of  attack  sometimes  enlarges 
the  scope  of  the  defense,  and  admits  evidence  that  the  rule 
would  exclude  if  offered  in  the  first  instance.57 

86.  Extrinsic  Aid  in  Reading. 

Whatever  is  necessary  to  possess  the  court  with  an  under- 
standing of  the  language  or  characters  in  which  the  will  is 
written,  may  be  supplied  by  extrinsic  evidence;  58  and  it 

illustrating    it,    as    now    adminis-  circumstances  surrounding  the  tes- 

tered  in  the  courts  of  highest  au-  tator  at  the  time  of  its  execution, 

thority.  Whitcomb    v.    Rodman,    156    111. 

57  Where  one  party  proved  the  116,  47  Am.  St.  Rep.  181,  40  N.  E. 
nature  of  a  transaction  with  the  Rep.  553.    Extrinsic  evidence  may 
testator  to  affect  the  construction  be    admitted    in    a    proper    case, 
or  application  of  the  will, — Held,  where  the  effect  of  it  is  merely  to 
that  the  other  might  give  testa-  explain  or  make  certain  what  the 
tor's  declarations  to  the  contrary,  testator  has  written;  but  such  evi- 
in   evidence,   by   way   of   contra-  dence  is  never  admissible  to  show 
diction.     DENIO,   J.,   Tillotson   v.  what  the  testator  intended  to  write. 
Race,  22  N.  Y.  127.  Sturgis  v.  Work,  122  Ind.  134,  17 

58  See  Wigram's  4th  proposition  Am.  St.  Rep.  349,  22  N.  E.  Rep. 
above.     In    case    of    latent    am-  996;  Hawhe  v.  Chicago,  etc.,  R. 
biguity   in   a   will,    extrinsic    evi-  Co.,  165  111.  561,  46  N.  E.  Rep. 
dence   may    be    resorted    to,   not  240;  Heidenheimer  v.  Bauman,  84 
for  the  purpose   of   contradicting  Tex.  174,  31  Am.  St.  Rep.  29,  19  S. 
or    adding    to    the    will,    but    to  W.  Rep.  382.    In  construing  a  will 
determine   the   existence   or   non-  no  evidence  of  the  testator's  in- 
existence  of  such  ambiguity,  and  structions  to  the  draftsman  of  the 
to  enable  the  court  to  look  upon  will,  or  of  his  declarations,  is  ad- 
the  will  in  the  light  of  facts  and  missib'le  to  show  his  intention  or  to 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


403 


will  readily  be  seen  that  the  principle  is  the  same,  whether 
the  difficulty  in  reading  the  will  arises  from  the  fact  that  it 
was  written  in  a  foreign  language,  or  a  peculiar  dialect,  or 
from  the  fact  that  the  testator  habitually  used  words  of 
the  common  language  in  a  peculiar  way,  or  used  characters 
and  hieroglyphics  instead  of  the  common  notation  of  lan- 
guage. But  the  competency  of  the  evidence  consists  not 
in  its  showing  what  testator  intended  in  this  particular 
case,59  but  in  showing  what  his  habitual  speech  and  notation 
were,  leaving  the  court,  in  the  light  of  this  fact,  to  read  the 
will  and  ascertain  thence  what  his  intention  was.60  Accord- 


aid  in  the  interpretation  of  the 
will.  Frick  v.  Frick,  82  Md.  218, 33 
Atl.  Rep.  462. 

Extraneous  and  parol  evidence 
is  admissible  to  explain  a  will  when 
there  is  a  latent  ambiguity  arising 
dehors  the  instrument,  but  never 
to  supply,  contradict,  enlarge  or 
vary  the  written  words.  Brown  v. 
Quintard,  177  N.  Y.  75,  69  N.  E. 
Rep.  225. 

Courts  of  Chancery  have  no 
power  to  add  to  or  reform  a  will 
on  the  ground  of  mistake.  The 
intention  which  is  to  be  sought 
for  in  the  construction  of  a  will  is 
not  that  which  existed  in  the  mind 
of  the  testator,  but  that  which  is 
expressed  in  the  language  of  the 
will.  Williams  v.  Williams,  189 
111.  500,  59  N.  E.  Rep.  966;  En- 
gelthaler  v.  Engelthaler,  196  111. 
230, 63  N.  E.  Rep.  669. 

59  Id.  Parol  evidence  aliunde  the 
will  is  admissible  for  the  purpose  of 
showing  that  certain  of  the  testa- 
tor's children,  who  did  not  receive 
anything  under  the  will,  were  in- 
tentionally omitted.  Whittemore 


i\  Russell,  80  Me.  297,  6  Am.  St. 
Rep.  200,  14  Atl.  Rep.  197. 

Where  the  primary  meaning  of 
the  words  leads  to  an  absurd  re- 
sult the  courts  will  not  follow  it 
but  may  adopt  other  meanings. 
Matter  of  Kear,  133  N.  Y.  App. 
Div.  265,  117  N.  Y.  Supp.  667. 

60  Hence  neither  the  testator's 
declarations  of  what  he  meant, 
nor  the  testimony  of  the  drafts- 
man as  to  the  meaning  of  the  clause, 
is  competent  (1  Redf.  on  W.  535, 
§  50,  and  cases  cited)  nor  is  a  letter 
to  the  testator  from  his  solicitor 
(Wilson  v.  O'Leary,  L.  R.  7  Ch. 
App.  448,  s.  c.,  2  Moak's  Eng. 
342). 

White  extrinsic  evidence  cannot 
be  resorted  to  for  the  purpose  of 
changing  or  explaining  a  will,  it 
may  be  for  the  purpose  of  showing 
the  circumstances  characterizing 
the  making  and,  for  the  purpose  of 
determining  the  meaning,  in  fact, 
and  intended  to  be  expressed 
therein,  it  may  be  read  in  the  light 
of  such  circumstances.  Boeck's 
Will,  160  Wis.  577,  152  N.  W.  Rep. 
155,  L.  R.  A.  1915,  E.  1008. 


404 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


ingly,  if  a  will  is  written  in  a  foreign  language  or  in  short- 
hand or  cipher,  it  may  be  translated  by  competent  ev- 
idence; 61  if  it  contains  terms  which  the  writer  habitually 
used  in  a  peculiar  sense,  that  habit  can  be  shown; 62  if  it  con- 
tains terms  with  which,  as  a  member  of  a  particular  trade  or 
calling,  he  was  familiar,  or  language  which  has  a  provincial 
or  local  meaning,63  persons  acquainted  with  the  meaning  of 
the  words  may  be  received  as  witnesses  to  translate  or  define 
them.  If  he  was  accustomed  to  designate  a  person  by  a  short 
name,  such  as  the  surname  alone,64  or  the  baptismal  name 
alone,65  or  a  pet  name; 66  or  habitually  to  misname  the  person 
through  confusing  several  names,67  or  to  use  abbreviations  or 
a  cipher, — as,  for  instance,  a  private  price  mark  for  goods  in 


"Clayton  v.  Ld.  Nugent,  13 
Mees.  &  W.  200. 

62  Per    BRADFORD,    J.,    Hart    v. 
Marks,  4  Bradf.  163;  Doe  ex  dem 
Hiscocks  v.  Hiscocks,  5  Mees.  & 
W.  363. 

In  construing  a  will,  the  ordin- 
ary, primary  meaning  is  to  be  given 
its  language  unless  other  terms 
used  disclose  that  such  meaning 
is  repugnant  to  the  testator's  in- 
tent as  it  appears  from  the  whole. 
Mace  v.  Hollenbeck,  175  S.  W. 
Rep.  (Mo.)  876. 

63  Ryerss  v.  Wheeler,  22  Wend. 
152,  and  cases  cited. 

Parol  evidence  may  be  received 
of  a  usage  or  custom  to  explain  the 
meaning  of  terms  used  in  a  foreign 
will,  but  only  for  the  purpose  of 
enabling  the  court  to  properly  in- 
terpret the  true  intention  of  the 
testator.  Peet  p.  Peet,  229  111. 
341,  82  N.  E.  Rep.  376,  13  L. 
R.  A.  N.  S.  780,  11  Ann.  Gas. 
492. 

Evidence  is  admissible  to  show 
that  expressions  used  in  the  will 


had  acquired  an  appropriate  mean- 
ing either  generally  or  by  local 
usage,  or  amongst  particular 
classes,  and  where  there  is  any 
doubt,  the  sense  and  meaning  may 
be  investigated  by  evidence  de- 
hors  the  instrument.  In  re  Ray- 
ner,  [1904]  1  Ch.  176. 

"Clayton  v.  Ld.  Nugent,  13 
Mees.  &  W.  200,  207. 

"Wigr.  by  O'Hara,  139. 

66 1  Redf.  on  W.  630. 

A  will  is  to  be  interpreted  by  an 
examination  of  the  whole  thereof 
in  an  attempt  to  arrive  at  the  in- 
tention of  the  testator,  and  the 
technical  import  of  words  is  not 
to  prevail  over  the  obvious  intent 
of  the  testator.  Such  intent,  how- 
ever, must  not  only  clearly  appear 
but  be  capable  of  being  carried 
out.  Asbury  v.  Shain,  191  Mo. 
App.  667,  177  S.  W.  Rep.  666. 

67  Lee  v.  Pain,  4  Hare,  251,  ap- 
proved in  Jarman,  3d  ed.,  vol.  1, 
392,  but  questioned  by  Redfield, 
1  Redf.  on  W.  632. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


405 


his  business,68 — and  such  names  or  characters  appear  in  his 
will,  they  may  be  explained  by  evidence  of  his  usage.  But 
extrinsic  evidence  of  what  testator  intended  by  using  initials 
or  ciphers  in  a  bequest,  as  distinguished  from  evidence  of 
what  it  was  his  common  habit  of  speech  or  writing  to  use 
them  for,  is  not  admissible.69  Another  important,  but  not 
very  well  defined  qualification  of  this  rule  exists  in  respect 
to  those  technical  legal  words  to  which  the  law  fixes  a  def- 
inite legal  meaning,  such  as  "next  of  kin."  Such  meaning 
cannot  be  varied  by  parol.  And  a  contradiction  hi  terms  of 
legally  settled  import  appearing  on  the  face  of  the  will,  must 
be  settled  by  rules  of  interpretation,  without  resort  to  extrin- 
sic evidence.70 


not  proven  to  be  a  copy,  but 
proven  to  have  a  general  resem- 
blance to  a  card  seen  lying  with  the 
will, — Held,  that  the  key  was  not 
admissible  and  the  bequests  were 
void  (Clayton  v.  Ld.  Nugent,  13 
Mees.  &  W.  200). 

In  construing  a  will  the  word 
"or"  may  be  construed  to  mean 
"and"  in  order  to  carry  the  tes- 
tator's intention  into  effect.  Ham 
v.  Ham,  168  N.  C.  486,  84  S.  E. 
Rep.  840,  Ann.  Cas.  1917,  C.  301. 

70  Weatherhead  v.  Baskerville,  11 
How.  (U.  S.)  329.  Parol  evidence 
of  facts  and  circumstances  sur- 
rounding a  person  executing  an 
instrument  of  gift  may  be  received 
to  show  that  such  instrument 
was  intended  as  a  will,  and  not  a 
donation  inter  vivos;  and  may  also 
be  received  to  ascertain  the  sub- 
jects and  objects  of  the  testator's 
bounty,  and  to  show  that  another, 
whose  signature  appears  upon  the 
instrument  in  connection  with  that 
of  the  maker,  did  not  sign  as  a 
joint  testator.  Smith  v.  Holdan, 


.  Charmer,  23  Beav. 
195. 

Words  in  a  will  are  not  to  be 
treated  as  a  nullity.  They  are  to 
be  construed,  if  possible,  in  a  way 
to  give  them  effect.  In  re  Irish, 
89  Vt.  56,  94  Atl.  Rep.  173,  Ann. 
Cas.  1917,  C.  1154. 

69  The  distinction  is  well  exhibited 

thus:  A  bequest  to  Lady ,  is 

void,  and  the  blank  cannot  be 
supplied  by  extrinsic  evidence 
(Hunt  T.  Hort,  3  Bro.  C.  C.  311). 

But  a  bequest  to Page  may  be 

sustained  in  favor  of  a  person  of 
that  name  on  evidence  that  tes- 
tator was  accustomed  to  call  him 
"Page"  (Price  v.  Page,  4  Ves.  679, 
and  see  Miller  v.  Travers,  8  Bing. 
244,  and  cases  cited).  Thus  where 
the  beneficiaries  were  only  indi- 
cated by  initials  and  blanks,  and 
there  was  pasted  into  the  will  at 
time  of  attestation  a  slip  referring 
to  a  card  in  his  desk,  as  constitut- 
ing a  key  to  the  significance  of  the 
initials,  and  the  only  card  found 
was  dated  long  after  the  will,  and 


406 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


87.  Alterations. 

When  the  question  is  not  foreclosed  by  a  conclusive  pro- 
bate,71 extrinsic  evidence  is  competent  within  certain  limits, 
and  sometimes  necessary,  to  explain  alterations  in  the  orig- 
inal will.  Unattested  alterations  in  a  will  are  not,  as  in  case 


58  Kan.  535,  50  Pac.  Rep. 
447. 

Where  an  estate  or  interest  is 
given  by  will  in  words  of  clear  and 
ascertained  legal  signification,  it 
shall  not  be  enlarged,  cut  down,  or 
destroyed  by  superadded  words  in 
the  same  or  subsequent  clauses, 
unless  they  raise  an  irresistible 
inference  that  such  was  the  inten- 
tion. Adams  v.  Verner,  102  S.  C. 
7, 86  S.E.  Rep.  211. 

The  word  "issue"  though  gener- 
ally equivalent  to  the  words  "heirs 
of  the  body"  is  not  as  strong  as  a 
word  of  limitation  as  the  expres- 
sion "heirs  of  the  body."  Adams 
v.  Verner,  102  S.  C.  7,  86  S.  E. 
Rep.  211. 

The  use  of  the  word  "lawful" 
before  the  word  "heirs"  makes 
no  difference  in  the  legal  effect  of 
the  expression.  In  re  Irish,  89  Vt. 
56,  94  Atl.  Rep.  173,  Ann.  Cas. 
1917,  C.  1154. 

Husband  and  wife  are  not  next 
of  kin.  In  re  Garrett,  249  Pa. 
249,  94  Atl.  Rep.  927. 

Where  there  is  an  irreconcilable 
inconsistency  between  two  pro- 
visions of  a  will,  effect  will  be  given 
to  the  later  in  preference  to  the 
earlier  clause,  as  being  the  latest 
expression  of  the  testator's  inten- 
tion. Nolan  v.  Nolan,  169  App. 
Div.  372,  154  N.  Y.  Supp.  355; 
Goffe  v.  Goffe,  37  R.  I.  542,  94 


Atl.  Rep.  2,  Ann.  Cas.  1916,  B. 
240. 

Where  a  valid  testamentary  dis- 
position has  already  been  made, 
a  subsequent  clause  vague  and  in- 
capable of  any  construction  which 
will  bring  it  into  harmony  with 
anything  that  has  gone  before, 
must  be  held  to  be  wholly  nugatory. 
Goffe  9.  Goffe,  37  R.  I.  542,  94 
Atl.  Rep.  2,  Ann.  Cas.  1916,  B. 
240. 

A  will  must  be  considered  as  a 
whole.  The  order  in  which  the 
will  is  paragraphed  does  not  con- 
trol except  where  a  later  clause 
is  repugnant  to  a  preceding  one, 
and,  if  given  force,  destroys  that 
wlu'ch  precedes.  Canaday  v.  Bay- 
singer,  170  Iowa,  414,  152  N.  W. 
Rep.  562. 

The  original  will  and  codicils  are 
to  be  considered  and  construed 
as  an  entirety.  If  the  provisions 
of  any  of  the  codicils  conflict  with 
or  are  repugnant  to  the  provisions 
of  the  original  will,  the  provisions 
of  the  instrument  last  executed, 
the  codicil  or  codicils,  shall  pre- 
vail, but  the  provisions  of  each 
should,  as  far  as  practicable,  be 
given  such  effect  as  the  testator 
intended  them  to  have.  Guthrie 
v.  Guthrie,  168  Ky.  805,  183  S.  W. 
Rep.  221. 

71  See  paragraph  60. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  407 

of  a  deed,  presumed  to  have  been  made  before  execution.72 
It  has  been  usually  said  that  in  the  absence  of  evidence  there 
is  a  presumption  that  an  unattested  alteration  appearing  hi 
a  will  was  made  after  its  execution.73  It  more  accurately 
represents  the  present  practice  to  say  that  the  burden  is 
upon  him  who  asserts  the  alteration  to  be  valid,  to  give  some 
evidence  from  which  it  may  be  inferred  that  it  was  made 
before  execution,74  unless  it  may  be  inferred  that  such  was 
the  case  from  the  face  of  the  document.75  The  time  when  the 
alterations  were  made  may  be  shown  by  proving  the  declara- 
tions of  the  testator,  whether  uttered  at  the  execution  of  the 
will,  or  before  it,  even  by  way  of  expression  of  an  intention 
which  would  be  defeated  by  disregarding  the  alteration.76 
The  testimony  of  a  subscribing,77  or  other  eye-witness,  is  of 
course  competent;  and  so  is  the  opinion  of  an  expert.78  The 
testimony  of  an  eye-witness  is  of  more  weight  than  that  of 
experts.79  In  the  absence  of  other  evidence  as  to  when  the 
alterations  were  made,  the  fact  that  dates  prior  to  that  of  the 
will  were  affixed  to  some  of  them  by  the  testator  is  not  suffi- 
cient to  show  that  they  were  made  before  execution.80 

72 1  Redf.  on  W.  314-3L6  (23).  Wms.  Ex'rs,  6  Am.  ed.  411;  Dench 

73  Rose.  N.  P.  160,  2  Whart.  Ev.,  v.  Dench,  25  Weekly  R.  414.    Com- 
§  897;  Steph.  Dig.  Ev.,  art.  89.  pare  2  Whart.  Ev.  252,  §  1008. 

74  Goods  of  Sykes,  L.  R.  3  P.  &  "  Charles  v.  Huber,  78  Pa.  St. 
D.  26,  s.  c.,  5  Moak's  Eng.  R.  521,  448. 

and  cases  cited.  •  n  Re  Hindmarch,  1  L.  R.  Prob. 

75  As,  for  instance,  where  an  in-  307,   s.   P.,  Dubois   v.   Baker,  30 
terlineation  consists  of  words  nee-  N.  Y.  355,  affi'g  40  Barb.   556. 
essary  to  complete  the  sense,  and  Compare  Sackett  v.   Spencer,   29 
apparently   written    at    the   same  Barb.  180. 

time    and    with    the    same    ink.  n  Testimony  of  one  who  drew  a 

Goods  of  Cadge,  L.  R.  1  P.  &  M.  will  and  saw  it  executed,  that  it 

543.    Another  instance  is  the  cor-  has   not   been   altered,   outweighs 

rection  of  an  absurdity.     If  the  testimony  of  many  who  speak  only 

question  arises  on  the  face  of  the  from  an  inspection  of  the  paper, 

paper  alone,  the  question  is  usu-  as  produced.     Malin  v.  Malin,  1 

ally  for  the  jury.    See  Van  Buren  Wend.  625. 

v.  Cockburn,  14  Barb.  118.  «°  Goods  of  Adamson,  L.  R.  3 

"Goods    of    Sykes    (above),    1  Prob.  &  Div.  253,  s.  c.,  14  Moak's 


408 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


Alterations  may  be  effectual  although  made  only  in  pencil.81 
But  where  there  are  both  pencil  and  ink  interlineations,  and 
some  of  the  penciled  words  are  under  the  words  in  ink,  but 
extend  beyond  them,  with  additional  provisions,  the  in- 
ference may  be  drawn  that  as  the  ink  superseded  some,  it 
was  intended  to  supersede  all  of  the  penciled  words,  and  that 
the  latter  were  merely  deliberative.82  Where  a  testator  has 
entirely  erased  the  name  of  a  legatee,  and  substituted  an- 
other name  in  its  place,  with  intent  to  revoke  only  by  sub- 
stitution, evidence  will  be  received  to  show  what  the  original 
name  was.83 

88.  Mistakes. 

The  court  may  correct  obvious  clerical  mistakes  appearing 
on  the  face  of  the  will; 84  but  the  only  case  in  which  extrinsic 
evidence  is  clearly  admissible  to  correct  an  error  by  sub- 
stituting something  necessary  to  be  inserted,  is  in  respect  to 
an  error  of  the  date.85 


Eng.  704.  The  presumption  that 
sheets  bound  together  and  con- 
stituting a  will,  as  found  in  the 
testator's  desk,  were  so  bound  to- 
gether at  the  time  of  the  execution, 
is  not  necessarily  rebutted  by  the 
fact  that  the  numbering  shows  that 
one  of  the  original  sheets  had  been 
removed  and  another  of  them 
transposed  into  its  place.  Rees  v. 
Rees,  L.  R.  3  P.  &  D.  84,  s.  c., 
6  Moak's  Eng.  365. 

a1  Matter  of  Tonnelle,  5  N.  Y. 
Leg.  Obs.  254;  but  see  12  Barb. 
595. 

82  Goods  of  Adams,  2  Moak's 
Eng.  R.  151. 

"Goods  of  McCabe,  L.  R.  3 
P.  &  D.  94,  s.  c.,  6  Moak's  Eng. 
372,  and  cases  cited. 

•*  Thus  "and"  may  be  read  "or," 
and  conversely.  Jackson  v.  Blan- 


shan,  11  Johns.  54,  and  other  cases 
in  2  Abb.  N.  Y.  Dig.  (2d  ed.)  669, 
6  Id.  178,  181.  "May  leave,"  may 
be  read  "may  have."  Dubois  v. 
Ray,  35  N.  Y.  162,  s.  P.  in  L.  R. 
16  Eq.  239.  "Reviving,"  may  be 
read  "surviving."  Pond  v.  Bergh, 
10  Paige,  140.  "  Preparatory  meet- 
ing," in  the  designation  of  the 
donee,  may  be  read  "preparative 
meeting,"  that  being  in  the  true 
name  of  the  only  claimant.  Dexter 
v.  Gardner,  7  Allen,  245. 

Courts  will  change  a  word  where 
it  appears  from  the  will  that  it  was 
used  by  mistake.  Kahn  v.  Tierney, 
135  N.  Y.  App.  Div.  897, 120  N.  Y. 
Supp.  663. 

85  Goods  of  Thomson,  L.  R.  1 
Pr.  &  M.  8;  Reffell  v.  Reffell,  Id. 
139.  Where  the  attorney,  draw- 
ing the  codicil,  intended  to  con- 


NEXT   OF   KIN.    DEVISEES   AND    LEGATEES 


409 


89.  Extrinsic  Aid  in  Testing  Validity. 

In  practice,  all  the  questions  involved  in  the  validity  of 
the  instrument  are  usually  tested  upon  probate,  as  we  have 
seen.  It  will  suffice  here  to  observe  that  when  the  question 
of  validity  is  not  concluded  by  the  probate,  the  same  evidence 
is  competent  as  would  be  in  a  proceeding  for  probate;  and 
also  that  when  the  instrument  as  a  whole  is  not  impeached, 
it  is  still  competent  to  show  that  a  particular  part  of  it  was 
not  the  testator's  will;  as,  for  instance,  that  a  clause  was 
interlined  by  another  hand  without  authority,86  or  that  a 
particular  part  was  inserted  through  undue  influence,87  or 
that -a  sheet  was  not  in  the  will  at  the  time  of  its  execution.88 
But  due  execution  is  presumptive  evidence  that  the  testator 
knew  the  contents  of  the  will,  and  that  it  conforms  to  his 
intentions; 89  and  it  is  not  competent  to  show  that  he  acted 


elude  the  codicil  with  a  paragraph 
"in  all  other  respects,  I  confirm 
ray  said  will,"  but  by  mistake  wrote 
"revoke"  instead  of  "confirm," 
and  in  this  State  the  codicil  was 
executed, — it  was  held  that  parol 
evidence  could  not  be  received  to 
correct  the  mistake.  In  re  Davy, 
5  Jur.  N.  S.  252,  s.  c.,  1  Sw.  &  Tr. 
262,  1  Redf .  on  W.  592,  §  25.  On 
the  contrary,  where  the  fourth 
codicil  revoked  the  three  previous 
codicils,  and  a  fifth  codicil  pur- 
ported to  confirm  the  four  codicils, 
— Held,  that  extrinsic  evidence  was 
admissible  to  show  that  four  meant 
fourth.  Goods  of  Thomson,  L. 
R.  1  Pr.  &  M.  8.  See  Hart  v. 
Tulk,  2  De  Gex,  M.  &  G.  300, 
where,  on  extrinsic  evidence  of  the 
situation  of  the  family  and  prop- 
erty, the  court,  in  order  to  set 
right  what  appeared  to  them  to 
be  an  obvious  clerical  error,  held 
that  the  words  "fourth  schedule" 


in  a  will  should  be  read  as  if  they 
were  "fifth  schedule." 

Punctuation  and  even  capitali- 
zation are  uncertain  guides,  and 
may  be  disregarded  when  they  serve 
to  obscure  the  true  meaning  to  be 
gathered  from  all  parts  of  the  will. 
Tapley  v.  Douglass,  113  Me.  392, 
94  Atl.  Rep.  486. 

86  Doe  v.  Palmer,  16  Q.  B.  Ad.  & 
E.  747;  Charles  v.  Huber,  78  Pa. 
St.  448. 

87  Ld.   Trimlestown  v.   D'Alton, 
1  Dow.  &  Cl.  85;  Florey  v.  Florey, 
24  Ala.  241. 

88  See  Miller  v.  Travers,  8  Bing. 
244. 

89 1  Redf.  on  Wills,  3d  ed.  536, 
'§  57.  The  fact  that  a  capable  tes- 
tator read  or  heard  read  the  pro- 
vision before  attesting  it,  cannot 
be  countervailed  by  the  testi- 
mony of  the  scrivener  that  he  in- 
serted it  by  inadvertence,  and  with- 
out instructions.  Guardhouse  v. 


410  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

under  a  mistake  of  f orgetf ulness  of  fact  as  to  persons  or  prop- 
erty, for  the  purpose  of  inferring  that  he  would  not  have 
intended  a  certain  express  gift  if  he  had  been  rightly  in- 
formed.90 Nor  can  it  be  shown  that  he  gave  different  instruc- 
tions as  to  the  clause  to  be  inserted,  and  executed  the  in- 
strument in  ignorance  of  the  draftsman's  mistake.91  And 
even  if  it  be  admissible  to  show  that  he  intended  a  clause  not 
to  take  effect  except  in  a  certain  contingency,92  this  cannot 
be  done  by  proving  that  he  gave  instructions  to  have  it 
drawn  in  one  way,  and  that  it  was  drawn  and  executed  in 
another.93  Unless  words  have  been  inserted  in  a  will  by 
fraud  or  mistake,  without  the  testator's  knowledge,  the  court 
cannot  correct  the  error  either  by  omission  or  insertion  of 
words.94 

90.  Rebutting  Evidence. 

But  wherever  extrinsic  evidence  is  admitted  to  negative 
the  genuineness  of  the  testamentary  act,  extrinsic  evidence 
is  admissible  to  affirm  it;  and  for  this  purpose  even  the  testa- 
Blackburn,  L.  R.  1  P.  &  M.  3  P.  &  D.  11,  s.  c.,  5  Moak's  Eng. 
109.  508. 

90  Jackson  v.  Sill,  11  Johns.  201.  Where    the    testator    made    no 

See  Gifford  v.  Dyer,  2  R.  I.  99;  provision  in  his  will  for  his  chil- 

Algood  r.  Blake,  L.  R.  8  Eq.  160.  dren,  extrinsic  evidence  is  admis- 

Compare    Crossthwaite    v.    Dean,  sible  to  show  that  it  was  his  in- 

5  Id.  245.  tention  to  omit  them  entirely.      In 

The    presumption    is    that    the  re    Peterson,    49    Mont.    96,    140 

testator  did  not  intend  to  devise  Pac.  Rep.  237,  Ann.  Cas.  1916,  A. 

any  property  that  did  not  belong  716. 

to  him.    La  Tourette  v.  La  Tour-  If  a  clause  of  a  will  is  manifestly 

ette,  15  Ariz.  200,  137  Pac.  Rep.  incomplete  and  no  effect  can  be 

426,  Ann.  Cas.  1915,  B.  70.  given  to  it  except  on  the  assump- 

91 1  Redf.  on  W.  604,  n.;  2  Whart.  tion  that  some  words  are  missing, 

Ev.  240,  §  995.                                .  the  apparent  omission  cannot  be 

92  Lister  v.  Smith,  3  Sw.  &  Tr.  supplied  if  there  is  nothing  in  the 

282.  will  which  makes  it  certain  that  the 

•3  Ordway  v.  Dow,  55  N.  H.  12.  words  sought  to  be  inserted  are  the 

94  Wallize  v.  Wallize,  55  Pa.  St.  ones   intended.     Clarke   v.    Rath- 

242.     So  held  in  a  Court  of  Pro-  bone,  221  Mass.  574,  109  N.  E. 

bate.      Harter   v.    Harter,    L.    R.  Rep.  651. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


411 


tor's  declarations  of  intention  may  be  received.  They  are 
not  in  this  case  adduced  to  eke  out  a  testamentary  act  in- 
sufficient under  the  statute;  but  merely  to  show  that  the 
sufficient  expression  of  intention  contained  in  the  will  was 
genuine. 

91.  Extrinsic  Aid  in  Applying. 

It  is  a  familiar  rule  that,  in  order  to  understand  the  in- 
tention of  the  testator,  for  purposes  of  construction,  we  must 
advert  to  his  situation  at  the  time  of  making  the  will,  and 
consider  such  circumstances  as  the  number  of  his  family, 
the  different  kinds  of  property  which  he  had,  etc. ; 95  and  a 


95  Doe  v.  Provoost,  4  Johns.  61 ; 
Shulters  v.  Johnson,  38  Barb.  80. 

Extrinsic  evidence  is  admissible 
to  show  the  circumstances  sur- 
rounding the  testator  so  that  the 
court  may  put  itself  in  his  position. 
La  Tourette  v.  La  Tourette,  15 
Ariz.  200,  137  Pac.  Rep.  426,  Ann. 
Cas.  1915,  B.  70;  In  re  Glasgow,  243 
Pa.  613,  618,  90  Atl.  Rep.  332, 
334;  Jacobs  v.  Ditz,  260  111.  98,  102 
N.  E.  Rep.  1077;  Matter  of  Bar- 
tholomew, 82  N.  Y.  Misc.  1,  143 
N.  Y.  Supp.  695;  White  v.  Holland, 
92  Ga.  216,  18  S.  E.  Rep.  17,  44 
Am.  St.  Rep.  87;  La  Tourefte  ». 
La  Tourette,  15  Ariz.  200,  137 
Pac.  Rep.  426,  Ann.  Cas.  1915,  B. 
70. 

Parol  evidence  to  show  the  situ- 
ation and  surroundings  of  the 
testator  and  the  objects  and  per- 
sons with  whom  he  was  familiar, 
and  upon  whom  his  affections  were 
resting  is  competent.  German 
Pioneer  Verein  v.  Meyer,  70  N.  J. 
Eq.  192,  63  Atl.  Rep.  835. 

A  will  may  be  considered  by  the 
court  in  the  light  of  the  surround- 


ing circumstances  at  the  time  of  its 
execution.  McGoldrick  v.  Bodkin, 
140  N.  Y,  App.  Div.  196, 125  N.  Y. 
Supp.  101;  Hoyt  ».  Hoyt,  85  N.  Y. 
142;  McManus  v.  McManus,  179 
N.  Y.  338,  72  N.  E.  Rep.  235. 

In  the  construction  of  a  will  it 
is  proper  to  take  into  considera- 
tion the  family,  character  and 
amount  of  the  estate,  in  order  to 
ascertain  the  intent  of  the  testa- 
tor. Crick's  Estate,  35  Pa.  Super. 
Ct.  39. 

Evidence  as  to  the  testator's 
acquisition  of  bonds  and  also  his 
disposition  of  them,  and  evidence 
as  to  his  habits  and  methods  of 
business,  is  admissible  in  so  far  as 
it  relates  to  the  situation  of  the 
testator's  estate  at  the  time  of  the 
will,  or  to  the  disposition  subse- 
quently of  property  referred  to  in 
the  will.  Blair  v.  Scribner,  65 
N.  J.  Eq.  498,  57  Atl.  Rep.  318. 

Declarations  of  the  testatrix 
that  the  value  of  her  real  estate 
holdings  have  greatly  depreciated, 
and  that  through  her  illness  her 
personal  estate  was  rapidly  de- 


412 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


general  and  pervading  obscurity  in  a  will  drawn  by  an  illit- 
erate person,  is  justly  regarded  as  strengthening  the  reason 
for  receiving  extrinsic  evidence  of  the  circumstances  of  the 
testator  and  his  family,  and  the  claims  on  him  of  a  legatee 
whose  gift  is  ambiguous.96 

The  principles  which  regulate  the  competency  of  extrinsic 
evidence  for  this  purpose,  are  the  same  whether  the  ques- 
tion relates  to  the  subject  or  to  the  object  of  the  gift;  and 
the  decisions  under  either  class  of  cases  are  applicable  to 
the  other.97  But  for  greater  practical  convenience  the  corn- 


creasing,  are  admissible  under  R.  S., 
c.  175,  §  66,  and  the  facts  are  ad- 
missible as  facts  in  the  light  of 
which  the  will  is  to  be  construed. 
George  v.  George,  186  Mass.  75, 
71  N.  E.  Rep.  85. 

Extrinsic  evidence  is  admissible 
to  show  the  intention  of  a  testator 
that  certain  legacies  in  a  codicil 
should  be  substituted  for  cor- 
responding legacies  in  his  will  and 
not  added  to  them.  Gould  v. 
Chamberlain,  184  Mass.  115,  68 
N.  E.  Rep.  39. 

While  it  is  true  that  we  must 
search  for  the  intent  of.  the  testator 
only  within  the  four  corners  of  his 
will,  still  when  we  come  to  con- 
sider it  and  interpret  its  meaning, 
we  must  do  so  in  the  light  of  all  the 
circumstances  by  which  he  was 
surrounded  when  he  made  it  and 
by  which  be  was  probably  influ- 
enced. In  re  South,  248  Pa.  165, 
93  Atl.  Rep.  954. 

96  Terpening  v.  Skinner,  30  Barb. 
373.  See  a  further  decision  in 
29  N.  Y.  505;  Doe  v.  Provoost, 
4  Johns.  61. 

If  wills  were  always  drawn  by 
counsel  learned  in  the  law,  it 


would  be  highly  proper  that  courts 
should  rigidly  adhere  to  prece- 
dents because  every  such  instru- 
ment might  justly  be  presumed  to 
have  been  drawn  with  reference 
to  them.  But  in  a  country  where, 
from  necessity,  or  choice,  every 
man  acts  as  his  own  scrivener,  his 
will  is  subject  to  be  perverted  by 
the  application  of  rules  of  con- 
struction of  which  he  was  wholly 
ignorant.  McCaffrey  v.  Manogue, 
196  U.  S.  563,  25  Sup.  Ct.  319, 
49  L.  Ed.  600;  Abbott  v.  Essex 
Co.,  18  How.  202,  15  L.  ed.  352; 
Atkins  v.  Best,  27  App.  D.  C.  148. 

Evidence  of  the  testator's  re- 
lation to  persons  or  the  amount, 
character  and  conditions  of  his 
estate  is  sometimes  admissible  to 
explain  the  ambiguities  of  de- 
scription in  his  will,  but  never 
to  determine  the  construction  or 
the  extent  of  the  devises  therein 
contained.  Atkins  v.  Best,  27 
App.  D.  C.  148;  Barber  v.  Pitts- 
burg,  etc.,  R.  Co.,  166  U.  S.  83, 
17  Super.  Ct.  488,  41  L.  ed.  925. 

97  American  Bible  Society  v. 
Pratt,  9  Allen,  11,  and  cases  cited. 

To    ascertain    and    carry    into 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


413 


petency  of  evidence  to  identify  the  object  of  the  gift,  that 
is  to  say,  the  beneficiary,  will  first  be  explained. 

92.  — in  Identifying  the  Person. 

It  is  not  essential  that  a  legatee  or  devisee  be  named;  a 
reference  by  which  he  may  be  ascertained  when  the  time 
comes  is  enough;  and  then  extrinsic  evidence  is  competent 
to  identify  him.98  If  the  whole  designation  used  in  the  will 
to  indicate  the  person,  whether  of  a  beneficiary  or  an  exec- 
utor, applies  with  exactness  to  one  claimant,  extrinsic  ev- 
idence, no  matter  how  persuasive,  is  not  admissible  for  the 
purpose  of  showing  that  some  other  one,  to  whom  it  does  not 
accurately  apply,  was  the  person  intended."  And  if  a  ben- 


effect  the  testator's  intention  courts 
may  hear  evidence  of  extrinsic 
facts  and  circumstances,  not  for 
the  purpose  of  varying  or  modi- 
fying the  provisions  of  the  will, 
but  to  remove  latent  ambiguities 
and  to  enable  the  court  to  identify 
either  the  subject-matter  or  the 
object  of  the  testator's  bounty. 
Hall  v.  Grand  Lodge,  I.  0.  O.  F., 
55  Ind.  A.  324,  103  N.  E.  Rep.  854. 

«  Holmes  v.  Mead,  52  N.  Y.  332. 

If  the  description  of  the  legatee 
is  uncertain  extrinsic  evidence  is 
admissible  to  identify  who  was 
intended.  Duensing  v.  Duensing, 
112  Ark.  362,  165  S.  W.  Rep.  956, 
Hitchcock  v.  Board  of  Home  Mis- 
sions of  Presbyterian  Church,  259 
111.  288,  102  N.  E.  Rep.  741,  Ann. 
Cas.  1915,  B.  1. 

If  there  is  more  than  one  person 
who  might  answer  the  description 
given  by  the  testator,  extrinsic 
evidence  may  be  introduced  to 
ascertain  who  was  intended.  Ab- 
bott v.  Lewis,  77  N.  H.  94,  88  Atl. 
Rep.  98. 


Where  the  testator  left  his  resid- 
uary estate  to  his  "heirs  hi  Ger- 
many" and  it  is  found  that  all  his 
heirs  but  one  reside  in  a  German 
canton  in  Switzerland  and  that 
the  one  heir  resided  in  Germany 
without  the  testator's  knowledge, 
it  should  be  held  that  the  residue 
should  go  to  the  testator's  heirs 
wherever  they  reside.  Giger  v. 
Busch,  122  111.  App.  13. 

"Tucker  v.  Seaman's  Aid  Soc., 
7  Mete.  188,  1  Redf.  on  W.  613, 
§  41.  Thus  where  the  executor 
named  was  but  twelve  years  old, 
the  court  refused  to  receive  parol 
evidence  that  testator  intended 
to  name  the  lad's  father,  whose 
name  was,  with  the  exception  of  a 
part  of  the  middle  name,  identical 
with  the  son's.  Goods  of  Peel, 
L.  R.  2  Pr.  &  M.  46. 

Unless  there  is  a  latent  ambiguity 
hi  the  will  extrinsic  evidence  is 
not  admissible.  Griffith  v.  Wit- 
ten,  252  Mo.  627,  161  S.  W.  Rep. 
708;  Murphy  v.  Clancy,  177  Mo. 
App.  429,  163  S.  W.  Rep.  915; 


414  ACTIONS   BY   AND   AGATNST   HEIRS   AND 

eficiary  is  once  adequately  and  accurately  named  or  de- 
scribed in  the  will,  this  is  conclusive;  and  if  the  same  name 
is  mentioned  a  second  time  in  the  same  instrument  without 
any  description  other  than  "said,"  extrinsic  evidence  is  not 
admissible  to  show  that  a  different  person  was  intended  the 
second  time.1  Where  the  second  reference  is  not  thus  iden- 
tified, but  is  so  expressed  that  it  may  be  referred  to  either  of 
two  persons  previously  named,  extrinsic  evidence  is  admis- 
sible to  remove  the  ambiguity,  and  for  this  purpose  the 
testator's  declarations  are  competent.2 

93.  — in  Case  of  Names  of  Relationship. 

Prima  facie  the  word  "children"  means  legitimate  chil- 
dren.3 There  must  be  clear  evidence  to  establish  another 
.  application  of  the  word.4  Hence,  under  a  bequest  to  testa- 
tor's "children,"  "nephews,"  etc.,  without  anything  on  the 
face  of  the  will  to  show  a  different  intent,5  none  but  the  testa- 
tor's own  and  legitimate  children  or  nephews  can  take,  if 
such  there  are.  But  extrinsic  evidence  is  admissible  to  show 

Peck  v.  Peck,  76  Wash.  548,  137  Hyatt  v.   Pugsley,  23  Barb.   285. 

Pac.  Rep.  137;  Hanvy  v.  Moore,  In  construing  a  will  it  is  proper 

140  Ga.  691,  79  S.  E.  Rep.  772.  to  read  it  in  the  light  of  surround- 

1  Webber  v.  Corbett,  L.  R.   16  ing   conditions,   the   relations   be- 

Eq.  515,  s.  c.,  6  Moak's  Eng.  841.  tween  the  testator  and  his  intended 

Thus,  where  testator  in  one  clause  beneficiaries,  the  amount  and  na- 

gave  the  personal  property  on  his  ture  of  his  estate,  and  other  rel- 

farm  to   "William,  Samuel,  Ben-  evant    circumstances  which   legit- 

jamin    and    James;    in    another  imately  tend,  in  cases  of  doubt,  to 

clause  gave  the  farm  to  Samuel,  show  the  probabilities  of  his  in- 

William  and  James"  (not  naming  tentions  one  way  rather  than  an- 

Benjamin),  and  in  the  next  clause  other.      Tapley  v.  Douglass,   113 

gave  other  lands  "to  the  said  last  Me.  392,  94  Atl.  Rep.  486. 

named  Samuel,  William,  Benjamin  2Doe  v.  Needs,  2  M.  &  W.  129; 

and  James," — Held,  that  the  am-  Doe  v.  Morgan,  1  C.  &  M.  235. 

biguity,  if   any,  was  patent,  and  3  Cromer   v.  Pinckney,  3  Barb, 

could  not  be  aided  by  parol  evi-  Ch.  466. 

dence  of  testator's  declarations  of  4  Hill  v.  Crook,  R.  R.  6  H.  of  L. 

intention  to  give  a  share  of  his  farm  265,  s.  c.,  7  Moak's  Eng.  1. 

to  Benjamin,  and  his  instructions  5  Brower  v.  Bowers,  1  Abb.  Ct. 

to  the  draftsman  to  include  him.  App.  Dec.  214. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


415 


that  there  are  none  such,  and  that  he  was  never  married,  but 
left  illegitimate  offspring,  and  that  he  recognized  them  as 
his  children.6  So,  also,  of  illegitimate  nephews.  In  like 
manner  evidence  is  admissible  that  the  only  nephews  and 
nieces  in  the  family  were  those  of  testator's  wife.7  Where 
the  words  of  relationship  such  as  " children,"  "cousin,"  etc., 
are  used  with  nothing  in  the  will,  read  in  the  light  of  sur- 
rounding circumstances,  to  show  that  a  broader  meaning 
is  intended  8  than  the  ordinary  meanings,  such  as  legitimate 


6  Gardner  v.  Heyer,  2  Paige,  11; 
Laker  v.  Hordern,  L.  R.  1  Ch.  Div. 
644,  s.  c.,  16  Moak's  Eng.  672,  34 
L.  T.  N.  S.  (Ch.  D.)  88.     Com- 
pare lupine  v.  Bean,  L.  R.  10  Eq. 
170. 

7  Sherratt  v.  Mountford,  L.  R.  8 
Ch.  App.  928,  s.  c.,  7  Moak's  Eng. 
479.    In  such  case  evidence  of  his 
ill-feeling  toward  them,   or  other 
circumstances    rendering    it    im- 
probable that  he  intended  them, 
was  held  not  admissible.     Id.     If 
the  bequest  to  children  refers  to 
those    of    another    than    testator, 
there  must  be  evidence  that  he 
knew  there  were  illegitimate  chil- 
dren  and   none   other,    and   that 
they,  in  their  reputed  character, 
would  answer  the  description,  in 
order  to  enable  them  to  take.    In 
re  Herbert,  6  Jur.  N.  S.  1027;  and 
see  1  Sm.  &  Giff,  126. 

8Redf.  on  W.  658;  Brower  v. 
Bowers,  1  Abb.  Ct.  App.  Dec. 
214. 

Where  the  testator  uses  the  word 
"children"  in  his  will,  parol  evi- 
dence will  not  be  admissible  to 
substitute  the  word  "sons"  for  it 
unless  it  was  the  plain  intention 
of  the  testator  as  shown  in  his 


will  to  favor  the  sons  to  the  exclu- 
sion of  the  daughters.  Weather- 
head  v.  Baskerville,  11  Howard, 
329,  13  L.  ed.  717. 

Where  a  testator  made  a  pro- 
vision in  his  will  for  "my  nieces" 
without  naming  them,  his  oral 
declarations  made  subsequent  to 
the  making  of  the  will  as  to  which 
nieces  were  intended  are  inad- 
missible. In  re  Holt,  146  Cal.  77, 
79  Pac.  Rep.  585. 

The  word  "children"  in  a  will 
does  not  include  grandchildren 
unless  it  appears  from  the  context 
to  have  been  so  intended  by  the 
testator,  or  such  meaning  is  neces- 
sary to  carry  out  his  manifest 
intent.  In  re  Scull,  249  Pa.  52, 
94  Atl.  Rep.  474. 

The  word  "children"  as  it  is 
ordinarily  used  in  a'  will  means 
immediate  descendants  of  the  first 
generation.  It  does  not  include 
grandchildren  unless  it  is  neces- 
sary to  ascribe  to  it  such  a  mean- 
ing in  order  to  give  effect  to  the 
will  or  unless  the  testator  has 
clearly  shown  by  other  language 
that  he  does  not  use  the  word  in 
its  ordinary  sense  but  intends  it  to 
have  a  more  extended  significance. 


410  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

sons  and  daughters,  first  cousin,  etc.,  independent  extrinsic 
evidence,  having  no  connection  with  the  words  of  the  will, 
cannot  be  received  to  enlarge  the  import. 

94.  — in  Case  of  Corporate  Designation. 

It  is  not  essential  that  a  corporation  be  designated  by  its 
legal  corporate  name.  It  may  be  designated  by  the  name 
by  which  it  is  usually  or  popularly  called  or  known,  or  by  a 
name  by  which  it  was  known  and  called  by  the  testator,  or 
by  any  name  or  description  by  which  it  can  be  distinguished 
from  every  other  corporation;  and  when  another  than  the 
corporate  name  is  used,  the  circumstances  to  enable  the 
court  to  apply  the  name  or  description  to  a  particular  cor- 
poration, and  identify  it  as  the  body  intended,  and  to  dis- 
tinguish it  from  all  others  and  bring  it  within  the  terms  of 
the  will  may,  in  all  cases,  be  proved  by  parol.9 

95.  — Applying  Erroneous  Designation. 

If  it  be  once  shown  by  extrinsic  evidence  that  there  is  no 
person  in  existence  who  exactly  and  fully  corresponds  with 

Crowell  v.  Rose,  38  R.  I.  93,  94  means  first  cousins  only.    Walker 

Atl.  Rep.  683.  v.  Chambers,  85  N.  J.  Eq.  376,  96 

A  bequest  to  the  "wife  and  chil-  Atl.  Rep.  359. 

dren"  of  the  testator  will  not  in-  9  Lefevre  v.  Lefevre,  59  N.  Y. 

elude  his  grandchildren  unless  the  434,   rev'g   in   part  2   Supm.   Ct. 

contrary  intent  is  shown  by  neces-  (T.    &   C.)    330;   First   Parish   in 

sary  implication,  as  where  there  Sutton  v.  Cole,  3  Pick.  237,  and 

are    no    children,    but    there    are  cases  cited. 

grandchildren,  or  where  the  term  Where  there  is  a  misnomer  of  a 
children  is  further  explained  by  a  legatee,  extrinsic  evidence  is  ad- 
limitation  over  in  default  in  issue.  missible  to  explain  the  ambiguity. 
Thompson  v.  Batts,  168  N.  C.  530,  Webster  v.  Morris,  66  Wis.  366, 
84  S.  E.  Rep.  858.  28  N.  W.  Rep.  353,  57  Am.  Rep. 

The  use  of  the  word  "family"  278. 

in  a  will,  means  parents  and  chil-  Extrinsic  evidence  is  admissible 

dren  whether    living    together   or  to   show   the   testator's   intention 

not.    Higgins  v.  Safe  Deposit,  etc.,  where  he  has  misnamed  a  chari- 

Co.,   127  Md.   171,  96  Atl.   Rep.  table    corporation.      Faulkner    v. 

322.  National  Sailors'  Home,  155  Mass. 

A    bequest    "to    my    cousins"  458,  29  N.  E.  Rep.  645. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


417 


the  designation  or  description  used  in  the  will  to  indicate 
the  donee,  extrinsic  evidence  is  then  admissible  to  ascertain 
to  whom  the  designation  points,10  and  for  this  purpose  it  is 
competent  to  adduce  evidence  of  the  circumstances  and 
habits  of  the  testator,  and  the  state  of  his  family  at  the  time 
he  made  the  will,  so  as  to  put  the  court  in  the  position  of  the 
testator,  in  order  to  ascertain  the  bearing  and  application 
of  the  language  which  he  has  used,  and  whether  there  exists 
any  person  to  whom  the  whole  description  given  in  the  will 
can  be  with  sufficient  certainty  applied.11  Parol  evidence 


10  Hart  v.  Marks,  4  Bradf.  161. 

Extrinsic  evidence  is  admis- 
sible to  show  the  testatrix's  in- 
tention when  she  named  a  chari- 
table institution  which  does  not 
exist.  In  re  Paulson,  127  Wis. 
612,  107  N.  W.  Rep.  484,  5  L.  R. 
A.  N.  S.  804,  7  Ann.  Cas.  652. 

11  Charter  v.  Charter,  L.  R.  7  H. 
of  L.  364,  s.  c.,  12  Moak's  Eng.  R. 
1,  affi'g  1  Moak's  Eng.  249;  Thomas 
v.  Stevens,  4  Johns.  Ch.  607.    Thus, 
by  the  aid  of  parol  evidence,  the 
American  Bible  Society,  the  Amer- 
ican  Tract   Society,   the   General 
Synod  of  the  Reformed  Protestant 
Church,  the  New  York  State  Colon- 
ization Society,  and  the  American 
Seaman's   Friend   Society,  respec- 
tively were  allowed   to   take  be- 
quests of  a  residue  expressed  thus, 
to  the  treasurers  of  the  following 
societies:  "Am.  Bible,  Tract,  Sy- 
nods, Board  of  Missions,  Domestic 
Missions,  N.  Y.  Colonization,  and 
Seaman's  Friend."     Hornebeck  v. 
American  Bible  Society,  2  Sandf. 
Ch.    133.     The   "Boston  Asylum 
and    Farm    School    for    Indigent 
Boys,"    was    enabled    to    take    a 
bequest   expressed   to   be   to   the 


"Boys'  Asylum  and  Farm  School," 
there  being  no  other  claimant. 
Minot  v.  Boston  Asylum,  7  Mete. 
416.  So  the  First  Congregational 
Society  in  A.  may  take  a  bequest 
to  "The  Congregational  Society  of 
A.,"  it  appearing  that  at  the  date 
of  the  execution  of  the  will  there 
was  no  other  such  Society  in  A., 
"and  there  being  no  other  claimant. 
Howard  v.  Am.  Peace  Soc.,  49 
Me.  297.  So  the  "Preachers' 
Aid  Society  of  the  Maine  Confer- 
ence of  the  Methodist  Episcopal 
Church,"  may  take  a  bequest  to 
"the  Maine  Methodist  Conference 
Ministers'  Aid  Society,"  if  the 
circumstances  indicate  that  this 
and  no  other  society  was  intended, 
there  being  no  other  claimant. 
Preachers'  Aid  Soc.,  45  Me.  552. 
The  testator  who  lived  in  C.,  made 
bequests  "tq  the  Presbyterian 
Church  in  C.,"  "to  the  Methodist 
Church  in  C.,"  and  "to  the  Bap- 
tist Church,"  not  adding  in  C.: 
Held,  that  the  former  gifts  were 
sufficient,  there  being  one  of  each 
such  churches  in  C.,  but  in  the 
absence  of  anything  to  identify 
the  Baptist  Church  with  that  in  C., 


418 


ACTIONS   BY   AND   AGAINST   HEIRS    AND 


is  admissible  to  show  who  was  the  person  whom  the  testator 
designated  by  a  particular  name.12 

96.  — Rejecting  False  Words. 

Where  a  designation  otherwise  correct,  contains  words 
which  are  false  or  inapplicable  to  the  claimant,  the  false  or 
inapplicable  part  may  be  rejected,  if  enough  remain,  in  the 
light  of  competent  extrinsic  evidence,  to  identify  the  donee. 
The  origin  of  the  rule  seems  to  have  been  in  rejecting  a  false 
description  added  to  a  correct  name,  but  the  rule  is  not  con- 
fined to  this  class  of  errors.  It  is  not  the  rule  that  the  name 
controls  the  description,  in  the  absence  of  evidence.13  The 


the  latter  was  void  for  uncertainty. 
Lefevre  v.  Lefevre,  2  Supm.  Ct. 
(T.  &  C.)  341.  In  this  case  no  evi- 
dence whatever  was  given  on  the 
trial  as  to  the  usage  of  the  testator, 
iri  speaking  of  the  Baptist  Church 
or  Society. 

When  the  description  of  tEe 
legatee  is  uncertain,  extrinsic  evi- 
dence may  be  introduced  to  show 
who  the  legatee  was  intended  to 
be.  Matter  of  Miller's  Estate,  26 
Pa.  Super.  Ct.  443. 

12  Phillips  v.  Ferguson,  85  Va. 
509,  17  Am.  St.  Rep.  78,  8  S.  E. 
Rep.  241.  "And  since  we  are 
seeking  to  dispel  a  latent  am- 
biguity lurking  in  the  name  of  the 
beneficiary,  if  she  herself  has  de- 
clared whom  she  thereby  named, 
why  should  we  not  accept  that 
declaration  to  the  extent  that  we 
believe  it  to  be  true?  The  rule  of 
exclusion  of  oral  declarations  of 
the  testator's  intentions  in  the 
case  of  the  construction  of  the  dis- 
positive provisions  of  the  will  rests 
upon  the  sound  basis  that,  as  the 
will  must  be  in  writing,  the  writing 


must  declare  the  intention,  other- 
wise an  oral  will  might  replace  the 
written  one;  but  in  case  of  an 
equivocation  in  writing  the  name 
of  the  beneficiary,  the  fact  is  that 
the  testatrix  has  written  the  name 
explicitly  enough  according  to  her 
understanding  of  it,  but  as  we  are 
not  possessed  of  her  exact  under- 
standing, we  fail  to  recognize 
the  person  thus  named.  If,  now, 
we  accept  the  testatrix's  oral  des- 
ignation of  the  person  named,  we 
do  not  replace  the  beneficiary 
written  in  the  will  by  another  not 
written  therein,  but  we  now  read 
the  written  name  in  the  light  of 
the  testatrix's  identification  of  the 
person  thus  named."  Matter  of 
Wheeler,  32  App.  Div.  (X.  Y.) 
183,  187-188. 

13  Drake  v.  Drake,  8  H.  of  L. 
Cas.  178.  In  this  case  the  drafts- 
man's testimony  to  his  instructions, 
was  excluded  as  incompetent. 
Compare  Gillett  v.  Gane,  L.  R.  10 
Eq.  29;  Doe  v.  Roast,  11  Jur.  99; 
Farrer  v.  St.  Catherine's  Coll.,  L. 
R.  16  Eq.  19;  Nunn's  Trusts, 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


419 


name  may  be  rejected  as  false,  leaving  the  description  to 
control.14  Upon  the  same  principle  evidence  is  competent 
that  the  testator  was  accustomed  to  call  a  person  by  the  name 
used  in  his  will,  which  is  not  the  true  name,15  or  even  by  a 
name  which  the  scrivener  mistook  by  similarity  of  sound  for 
that  written  in  the  will,  and  to  which  no  other  person  an- 
swers.16 Evidence  of  other  acts  of  beneficence  shown  to  the 


L.  R.  19  Eq.  331;  Camoys  v.  Blun- 
dell,  1  H.  of  L.  Cas.  786. 

While  words  may  not  be  added 
to  a  will  nor  inserted  in  lieu  of 
other  words  stricken  therefrom, 
yet  if  in  a  will  there  is  a  misde- 
scription  of  the  subject  of  a  devise, 
and  if,  after  striking  out  that  por- 
tion of  the  description  which  is 
false,  enough  of  the  description 
remains,  when  read  in  the  light  of 
the  circumstances  surrounding  the 
testator  at  the  time  the  will  was 
executed,  the  remaining  portion 
of  the  description  may  be  so  read 
and  the  testator's  purpose  given 
effect.  Douglas  v.  Bolinger,  228 
111.  23,  81  N.  E.  787,  119  Am.  St. 
Rep.  409;  Felkel  v.  O'Brien,  231 
111.  329,  83  N.  E.  Rep.  170. 

14  Thus,  in  a  bequest  to  "my 
brother  John,"  the  word  "John" 
might  be  rejected  on  proof  that 
the  testator  had  but  one  brother, 
James.  In  a  bequest  to  "my 
brother  Cormac,"  described  else- 
where in  the  will  as  the  father  of 
testator's  nephew  Cormac,  the 
name  Cormac  was  rejected,  and 
the  legacy  awarded  to  testator's 
brother  James,  the  father  of  the 
nephew  Cormac,  on  proof  of  these 
facts,  and  that  the  only  other 
brother  of  testator  was  dead,  and 
so  believed  by  testator  to  be. 


Connolly  v.  Parden,  1  Paige,  291. 

Where  a  testator  makes  a  be- 
quest to  his  half-brother,  naming 
him,  and  he  had  no  such  half- 
brother,  extrinsic  evidence  will  be 
admissible  to  show  that  the  tes- 
tator's brother-in-law  who  bore  the 
name  mentioned  and  who  lived 
with  the  testator,  was  intended. 
Rathjens  v.  Merrill,  38  Wash. 
442,  80  Pac.  Rep.  754. 

Where  the  language  used  by  the 
testator  in  describing  an  institu- 
tion is  not  the  technical  corporate 
name  of  such  institution  extrinsic 
evidence  may  be  introduced  to 
aid  the  court  in  finding  the  in- 
tention. Matter  of  Pearson,  52 
N.  Y.  Misc.  273,  102  N.  Y.  Supp. 
965. 

Where  the  testatrix  made  a  be- 
quest to  "Christian  Missionary 
Society  of  this  State"  extrinsic 
evidence  will  be  admitted  to  show 
that  she  intended  the  Missionary 
Society  of  the  Churches  of  Christ 
in  Indiana.  Van  Gorder  v.  Smith, 
99  Irrd.  404;  Gilmer  v.  Stone,  12. 
U.  S.  586,  7  Super.  Ct.  689,  30 
L.  ed.  734;  Chappell  v.  Missionary 
Society  of  Church  of  Christ,  3 
Ind.  App.  356,  29  N.  E.  Rep.  924, 
59  Am.  St.  Rep.  276,  note. 

15  Hart  v.  Marks,  4  Bradf.  161. 

16  Beaumont  v.  Fell,  2  P.  Wms. 


420  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

claimant  by  the  testator  while  living  is  competent; 17  so  is 
evidence  of  a  bequest  to  him  in  a  prior  will  of  the  same  testa- 
tor,18 and  evidence  of  a  general  belief  in  the  family  19  that  the 
testator  was  his  godfather.20  Where  one  person  answers 
to  the  name  only,  and  another  to  the  description  only, 
without  anything  in  the  will  to  decide  the  question,  there 
must  be  competent  extrinsic  evidence  supporting  the  applica- 
tion to  one  in  preference  to  the  other,  or  the  bequest  will  be 
void  for  uncertainty. 

97.  — Adverse  Claimants. 

We  have  thus  far  been  considering  chiefly  cases  where  there 
is  but  one  claimant,  the  question  being  whether  that  claimant 
shall  take,  or  the  gift  fail  for  uncertainty.  Where  the  only 
claimant  is  a  natural  person,  designated  inexactly  or  in- 
completely by  name,  it  is  incumbent  on  him  to  give  some 
evidence  tending  to  show  that  no  other  person  of  the  name 
is  entitled;  but  where  the  only  claimant  is  a  corporate  body, 
not  precisely,  but  nearly,  answering  to  the  designation  in  the 
will,  it  cannot  be  assumed  without  some  proof  that  there  is 
or  has  been  any  other  institution  bearing  a  name  or  descrip- 
tion similar,21  unless  the  designation  is  matter  of  description, 
by  words  judicially  known  to  be  applicable  to  many  such 

141,  2  Phil,  on  Ev.  729,  n.  2.    If  grossing  which  caused  the  inappli- 

there  were  a  claimant  answering  cability  of  the  description.    Ex  p. 

the  mistaken  description  such  evi-  Hornby,  2  Bradf.  420.     But  see 

dence  would  not  be  competent.  Charter  v.   Charter,   above   cited, 

17  Price  v.  Paige,  4  Ves.  679.  *  where  it  was  held  that  evidence 

18  In  re  Gregory,  11  Jur.  N.  S.  of  the  declarations  of  a  testator 
634.  as  to  whom  he  intended  to  benefit, 

19  Id.  or  supposed  he  had  benefited,  can 

20  Wagner's  Appeal,  43  Penn.  St.  only   be   received   where   the   de- 
102.    And  in  New  York  it  has  been  scription  of  the  legatee,  or  of  the 
held  competent  to  prove  testator's  thing  bequeathed,  is  equally  ap- 
declarations  at  the  time  of  execut-  plicable  in  all  its  parts  to  two  per- 
ing  the  will,  and  adduce  the  testi-  sons,  or  to  two  things. 

mony  of  the  draftsman  to  his  21  SHAW,  C.  J.,  Minot  v.  Boston 
instructions,  and  a  mistake  in  en-  Asylum,  etc.,  7  Mete.  419. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  421 

bodies.22  But  if  the  question  is  which  of  two  adverse  claim- 
ants are  entitled,  the  rules  of  evidence  differ  materially. 
Where  the  name  and  description  lead  to  a  reasonable  belief 
that  they  apply  to  some  one  person,  and  there  is  no  other 
person  to  whom  they  can  with  any  probability  apply,  then 
slight  evidence  will  be  sufficient  to  prove  that  that  person 
was  intended  by  the  designation.  But  if,  with  such  proof 
in  favor  of  one,  there  is  similar  or  stronger  proof  identifying 
another,  then  the  claim  of  the  former,  though  such  that,  if 
it  stood  alone,  it  would  be  prima  fade  proved,  is  controlled 
by  the  claim  of  the  other,  who  is  more  precisely  identified.23 
In  the  case  of  adverse  claimants  of  the  same  gift,  the  follow- 
ing rules  apply: 

1.  If  one  (being  competent  to  take)  alone  precisely  an- 
swers the  whole  designation  of  the  will,24  or  is  identified  by 
the  context,25  extrinsic  evidence  that  the  other  was  intended 
is  competent. 

2.  If  both  precisely  answer  the  whole  designation  and  in- 
dications of  the  will,  a  latent  ambiguity  or  "equivocation" 
is  presented,  and  extrinsic  evidence  is  competent;  and  in 
this  class  of  cases  direct  evidence  of  the  testator's  intention, 
even  by  proving  his  declarations  of  purpose,  is  admissible. 

3.  If  neither  precisely  answers  the  designation  and  in- 

M  See  Lefevre  v.  Lefevre,  above,  where    testator's    brother,    Mark 

23  SHAW,  C.  J.,  Minot  v.  Boston  Ingle,    had    died,    leaving    a    son 

Asylum,  etc.,  7  Mete.  418,  s.  P.,  of    the    same    name,    who    was 

Kilvert's  Trust,  L.  R.  7  Ch.  170.  abroad,   and   in   fact    living,   but 

"Extrinsic   evidence   is   admis-  whom    testator   had   been   led   to 

sible    to    show    that    the    P.    E.  suppose,  shortly  before  making  the 

"church"    in   N.,    in .  a   bequest,  will,  was  dead  and  testator  gave 

means  the  incorporated  "Society"  a   share  to  the  children  "of  my 

of  that  name,  which  is  proven  to  late  nephew,  Mark  Ingle," — Held, 

be   usually   and   popularly   called  that  evidence  of  intention  to  give 

the  church,  and  not  the  "church"  to   his   late   brother  was  not  ad- 

strictly  so  called,  which  is  unin-  missible.    Ingle's  Trusts,  L.  R.  11 

corporated,    and    consists    of    the  Eq.  578. 

communicants     united     in     con-          2B  Per  McCouN,  V.  C.,  Smith  v. 

nection  with  the  society.     Ayres  Smith,  1  Edw.  191. 
v.    Weed,    16    Conn.    291.      But, 


422  ACTIONS   BY   AND    AGAINST   HEIRS   AND 

dications  of  the  will,  but  both  do  so  approximately,  this  is 
also  a  case  of  latent  ambiguity,  admitting  extrinsic  evidence; 
and  in  this  class  of  cases,  too,  according  to  the  better  opinion, 
the  testator's  declarations  of  intent  may  be  proved. 

A  latent  ambiguity  is  made  out  within  these  rules,  not 
only  where  there  is  a  legal  name  which  fits  several,  but 
equally  where  there  is  a  description  only,26  or  a  name  used 
in  common  parlance,27  or  a  name  which  fits  one  claimant 
only,  coupled  with  a  description  which  fits  the  other  only,28 
or  a  designation  which  without  rejection  of  some  terms  is 
false  in  application.29  But  in  applying  these  rules,  the  prin- 
ciple is  to  be  kept  in  mind  that  if  the  one  claimant  is  desig- 
nated with  substantial  accuracy,  and  by  extrinsic  evidence 
it  appears  that  there  is  another  claimant  answering  less 
nearly  to  the  designation,  evidence  of  intention  is  not  com- 
petent.30 But,  on  the  other  hand,  if  the  designation  is  sub- 
stantially imperfect  in  its  application  to  each,  the  court  is 
not  bound  to  determine  in  favor  of  the  one  that  most  nearly 
answers  it,  but  extrinsic  evidence  is  admissible.31 

26  Brewster  v.  McCall,  15  Conn.          »  Drake  v.  Drake,  8  H.  of  L. 
292;   Button  v.  Am.   Tract   Soc.,      C.  178. 

23Vt.350.  "See  Still  v.   Hoste,   6   Madd. 

Where  there  is  an  ambiguity  in  192,  well  explained  in  1  Redf.  on 

the  description  of  real  estate  in  a  W.  627,  n. 

will,  parol   evidence  is  admissible  30  In  such  a  case,  evidence  of  tes- 

to  explain  it  in  order  to  enable  the  tator's    knowledge    of    the    latter, 

court  to  ascertain  the  intention  of  and  ignorance  of  the  former,  and 

the  testator.     St.   James  Orphan  that   his   instructions    named   the 

Asylum  v.  Shelby,  75  Nebr.  591,  latter,  but  the  draftsman,  under 

106  N.  W.  Rep.  604.  mistake  as  to  the  true  name,  pre- 

27  Ayres  v.  Weed,  16  Conn.  300.  vailed  on  him  to  insert  the  former 
Where  there  are  two  townships  of  name,   meaning   to   designate  the 

the  same  name,  one  being  a  civil  other,  is  not  competent  to  estab- 
township  and  the  other  a  school  lish  the  claim  of  the  latter,  even 
township,  a  bequest  to  the  town-  though  the  designation  would  en- 
ship  for  the  benefit  of  the  common  able  the  latter  to  take,  if  the 
schools  therein  will  be  held  to  relate  former  were  not  named.  SHAW, 
to  the  school  township.  Skinner  v.  Ch.  J.,  Tucker  v.  Seaman's  Aid 
Harrison  Township,  116  Ind.  139,  Soc.,  7  Mete.  209. 
18  N.  E.  Rep.  529,  2  L.  R.  A.  137.  S1  Ld.  PENZANCE,  Charter  v. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


423 


98.  — Circumstantial  Evidence  of  Intention. 

For  the  purpose  of  identifying  the  intended  donee,  it  is 
competent  to  prove  the  circumstances  of  his  relations  and 
dealings  with  the  testator,  and  the  testator's  habits  of  con- 
duct and  kindness  to  him.32  The  fact  that  testator  was  in- 
timately acquainted  with  one,  and  but  little  known  to  the 
other,  of  two  who  are  equally  near  to  a  mistaken  designation, 
sustains  a  presumption  of  fact,  that  he  intended  the  former.33 
So  of  the  fact  that  one  was  nearer  of  kin  to  him  than  the 
other.34 

99.  — Case  of  Gifts  to  Charities. 

To  identify  the  society  which  the  designation  in  the  will 
intends,  the  appropriate  evidence  includes  such  facts  as  the 
testator's  knowledge  or  ignorance  of  the  society  in  question,35 


Charter,  L.  R.  2  P.  &  D.  315, 
324,  s.  c.,  1  Moak's  Eng.  249,  259. 
Where,  however,  the  designation 
is  adequate  for  either  of  several 
societies,  some  of  which  are  ca- 
pable of  taking,  and  others  not, 
there  is  a  presumption  that  the 
testator  intended  one  of  the  former 
rather  than  the  latter.  Brewster 
v.  McCall,  15  Conn.  294. 

Extrinsic  evidence  is  admissible 
only  if  it  be  shown  that  the  de- 
scription of  the  legatee  is  doubt- 
ful or  imperfect.  In  re  Dominici, 
151  Cal.  181,  90  Pac.  Rep.  448. 

If  there  is  no  defect  in  the  lan- 
guage of  the  will  but  an  uncer- 
tainty arises  when  an  attempt  is 
made  to  apply  it,  the  ambiguity 
is  latent,  and  extrinsic  evidence 
is  admissible  to  ascertain  the  in- 
tention. Jennings  v.  Talbert,  77 
S.  C.  454,  58  S.  E.  Rep.  420. 

"  Above,  paragraph  96. 

Where    two    or    more    persons 


answer  the  description  given  by  a 
testator  of  a  legatee,  parol  evi- 
dence is  admissible  to  show  the 
intention  of  the  testator.  In  re 
Hubbuck  [1905],  Prob.  129. 

"Smith  v.  Smith,  1  Edw.  192; 
Careless  v.  Careless,  1  Merw.  384, 
s.  c.,  19  Ves.  601. 

34  Smith  v.  Smith  (above). 

36  Howard  v.  Am.  Peace  Soc., 
49  Me.  298.  Thus,  the  "Ameri- 
can Board  of  Commissioners  for 
Foreign  Missions"  may  take  a 
bequest  to  "The  Congregational 
Foreign  Missionary  Association," 
on  proof  that  it  was  the  only 
Foreign  Missionary  Society  identi- 
fied with  the  "Congregational" 
churches,  and  that  the  testator 
knew  of,  spoke  of,  and  contributed 
to  it,  alone,  and  desired  to  make  a 
bequest  to  it  but  did  not  know 
its  corporate  name;  and  although 
Baptist  and  Methodist  churches 
had  foreign  missionary  societies, 


424 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


his  visits  to  its  institution  or  field  of  labor,  and  the  fact  that 
he  conversed  about  it  before  making  his  will,36  the  facts  that 
he  expressed  a  strong  interest  in  it  in  conversation  37  or  in 
letters,38  or  expressed  a  preference  for  it  over  other  similar 
agencies,39  that  he  subscribed  to  its  funds,40  or  had  made  a 
special  gift  to  it,41  or  that  the  church  he  attended  was  accus- 
tomed to  take  a  contribution  for  it; 42  that  he  had  been  an 


and  the  Baptist  churches  are  in 
organization  congregational,  and 
although  there  was  also  an  Ameri- 
can Missionary  Association  en- 
gaged in  connection  with  Con- 
gregational churches  in  missions 
at  the  South.  Id. 

Where  the  will  makes  a  bequest 
to  "The  Public  Library  of  Phelps" 
and  there  are  two  such  institutions, 
extrinsic  evidence  to  show  the 
name  by  which  the  library  was 
known  to  the  testator  will  be  ad- 
mitted. Matter  of  Dickinson,  56 
N.  Y.  Misc.  232,  107  N.  Y.  Supp. 
386. 

A  misnomer  or  misdescription 
of  a  legatee  or  devisee  will  not  in- 
validate the  provision  or  defeat 
the  intention  of  the  testator,  if, 
either  from  the  will  itself  or  dehors 
the  will,  the  object  of  the  testa- 
tor's bounty  can  be  ascertained. 
Lefevre  v.  Lefevre,  59  N.  Y.  434; 
Bowman  v.  Domestic,  etc.,  Mis- 
sionary Soc.  of  Protestant 
Episcopal  Church,  100  N.  Y.  App. 
Div.  29,  90  N.  Y.  Supp.  898,  rev'g 
42  N.  Y.  Misc.  574,  87  N.  Y. 
Supp.  621. 

38  This  was  in  effect  fully  de- 
termined in  Lefevre  v.  Lefevre, 
N.  Y.  Ct.  of  App.  Cas.  1875. 

The  burden  is  upon  religious 
and  charitable  institutions  to  which 


legacies  are  given  to  show  not  only 
their  incorporation  but  that  it  is 
competent  for  them  to  take  such 
legacies.  Hughes  v.  Stoutenburgh, 
168  App.  Div.  512, 154  N.  Y.  Supp. 
65. 

37  Button  v.  Am.  Tract  Soc.,  23 
Vt.  349. 

38  Hornbeck  v.  Am.  Bible  Soc.,  2 
Sandf.  Ch.   133. 

39  Button    v.    Am.    Tract    Soc. 
(above).     It  was  there  held  that 
"The    American    Tract    Society" 
might  take,  as  against  "The  Amer- 
ican  Home   Missionary   Society," 
a  bequest  to  "  the  American  Home 
Mission    Tract    Society    for    our 
Western    Missions,"    on    extrinsic 
evidence    that    testator    was    ac- 
quainted with  the  objects  and  op- 
erations   of    the    Tract    Society; 
that  those  operations  were  mainly 
confined   to   the   Western   States; 
that  he  took  a  lively  interest  in  it, 
contributed  to  its  funds,  and  ex- 
pressed  a   preference  for  ,it   over 
other  charitable  institutions. 

<°Kilvert's  Trust,  L.  R.  7  Ch. 
170,  modifying  L.  R.  12  Eq.  183; 
Am.  Bible  Soc.  v.  Wetmore,  17 
Conn.  186. 

41  Hornbeck  v.  Am.  Bible  Soc. 
(above). 

42  Am.   Bible   Soc.   v.   Wetmore 
(above).    In  that  case  it  was  held 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


425 


officer  of  the  society  or  one  of  its  auxiliaries,43  or  that  his 
religious  sentiments  accorded  with  those  of  the  society.44 

100.  -  -  or  Misnomer. 

Upon  a  question  of  misnomer,  both  the  usage  of  the  testa- 
tor hi  speaking  of  the  society,45  his  ignorance  of  its  true 
name,46  and  the  common  usage  of  the  public,  are  competent; 


that  "The  American  Board  of 
Commissioners  for  Foreign  Mis- 
sions" might  take  a  bequest  to 
"The  Foreign  Mission  Society," 
upon  extrinsic  evidence  that  it 
was  commonly  known  by  that 
name  to  the  testatrix  and  the 
members  of  the  church  to  which 
she  belonged,  and  that  she  was 
friendly  to  its  objects  and  a  con- 
tributor to  it.  In  Gilmer  v.  Stone 
(120  U.  S.  586),  extrinsic  evidence 
was  admitted  to  identify  the  in- 
stitutions described  as  "the  board 
of  foreign  and  the  board  of  home 
missions."  In  Howard  v.  Am. 
Peace  Soc.,  (49  Me.  298),  to  show 
that  "The  American  Board  of 
Foreign  Missions"  was  intended 
by  a  bequest  to  the  "Congrega- 
tional Foreign  Missionary  Society," 
evidence  was  received  and  relied  on 
by  the  court,  that  testator,  be- 
fore making  his  will,  knew  of  its 
existence  as  a  society  gathering 
donations  from  Congregational 
churches  and  their  members,  for 
foreign  missions,  so  far  that  a 
periodical  collection  was  taken 
therefor  hi  the  Congregational 
churches  in  proximity  to  which 
he  resided;  that  testator  expressed 
a  desire  to  make  a  bequest  to  it, 
speaking  of  it  in  contradistinction 
to  certain  Methodist  and  Bap- 


tist Societies;  and  he  gave  instruc- 
tions for  such  bequest,  but 
neither  he  nor  his  draftsman 
knew  its  corporate  name. 

"  Brewster  v.  McCall,  15  Conn. 
294. 

"Id. 

"  Evidence  that  the  testator,  in 
speaking  of  the  affairs  of  the 
society  (a  religious  corporation  in 
contradistinction  from  the  church 
in  connection  with  which  it  was 
organized),  always  called  it  "the 
church,"  is  admissible  for  the  pur- 
pose of  ascertaining  which  body 
should  take  a  bequest  to  "the 
church."  Ayres  v.  Weed,  16 
Conn.  290. 

Where  there  is  a  misnomer  of  the 
legatee,  the  court  may  supply  the 
correct  name  from  extrinsic  evi- 
dence. Matter  of  Sliney,  81  N.  Y. 
Misc.  389,  143  N.  Y.  Supp.  351. 

46  In  The  Trustees,  etc.,  v.  Peas- 
ley  (15  N.  H.  317),  the  bequest 
was  to  "the  Franklin  Seminary 
of  Literature  and  Science,  New- 
market, N.  H.,"  and  again  "to 
said  Franklin  Seminary."  It  ap- 
peared that  the  school  was  at 
South  Newmarket,  in  the  town  of 
Newmarket,  and  known  by  the 
name  of  "The  Franklin  Seminary 
of  Literature  and  Science,"  but 
before  the  will  was  made  the  name 


426 


ACTIONS    BY    AND    AGAINST   HEIRS   AND 


and  for  the  latter  purpose,  it  is  competent  to  prove  that 
correspondents  of  the  institution  frequently  addressed  it  by 
the  name  used  in  the  will;  and  an  officer  of  the  society  or 
other  witness  cognizant  of  the  facts  may  be  asked  to  state 
generally  how  it  is  designated  in  their  correspondence,  cir- 
culars, and  advertisements;  and  how  it  was  commonly  called 
by  persons  having  dealings  with  it.47 


was  changed  by  incorporation  to 
"The  Trustees  of  the  South 
Newmarket  Methodist  Seminary." 
There  was  only  one  public  school 
at  Newmarket,  and  this  was 
taught  by  and  under  the  control  of 
Methodists,  although  it  does  not 
appear  that  it  was  a  sectarian 
school.  The  testator  was  a  Metho- 
dist clergyman,  and  once  asked 
another  Methodist  clergyman  to 
what  institution  he  should  make  a 
donation,  and  was  told  "The 
Franklin  Seminary  at  South  New- 
market." This  name  was  written 
down  by  the  testator's  wife,  at  his 
request,  and  placed  by  him  in  his 
pocket-book.  The  court  says,  "  The 
evidence  tends  strongly  to  show 
that  he  did  not  know  that  the 
name  of  the  school  had  been 
changed.  He  inquired  how  the 
school  at  South  Newmarket  pros- 
pered, and  often  spoke  about  it. 
Now,  these  facts  clearly  show  that 
the  testator  had  in  his  mind  the 
school  which  was  afterwards  in- 
corporated by  its  present  name. 
What  its  peculiar  designation  was, 
must  have  been  indifferent  to  him, 
for  it  was  the  institution,  by  what- 
ever name  it  was  known,  which 
he  desired  to  patronize  and  bene- 
fit." 

Where  a  bequest  was  made  to  a 


city  for  the  benefit  of  the  indigent 
children  in  its  Protestant  schools, 
and  there  were  no  schools  known 
as  Protestant  schools,  the  inten- 
tion and  purpose  of  the  testator 
was  carried  into  effect  by  con- 
struing the  word  "Protestant" 
as  meaning  "public."  Peaslee  v. 
Rounds,  77  N.  H.  544,  94  Atl. 
Rep.  263. 

47  Lefevre  v.  Lefevre,  59  N.  Y. 
434. 

Where  a  bequest  is  made  to  the 
"Second  National  Bank  of  Mer- 
cer" and  no  such  bank  exists,  ex- 
trinsic evidence  will  be  admitted 
to  show  that  another  bank  was 
commonly  known  by  that  name 
and  so  called  by  the  testator. 
In  re  Snyder's  Estate,  217  Pa.  St. 
71,  66  Atl.  Rep.  157,  118  Am.  St. 
Rep.  900,  11  L.  R.  A.  N.  S.  49, 
10  Ann.  Gas.  488. 

Where  the  name  or  description 
is  erroneous,  and  there  is  no  reas- 
onable doubt  as  to  the  person  who 
was  intended  to  be  named  or  de- 
scribed, the  mistake  will  not  defeat 
the  bequest;  the  rule  applies  to 
corporations  as  well  as  to  individ- 
uals. Wilson  v.  Perry,  29  W.  Va. 
169,  1  S.  E.  Rep.  302. 

The  mere  misnomer  of  a  legatee 
or  devisee  does  not  render  the  gift 
void,  if,  from  the  context  of  the 


NEXT   OF   KIN.    DEVISEES   AND    LEGATEES 


427 


101.  — Direct  Evidence  of  Intention. 

Some  of  the  English  decisions  48  declare  that  direct  ev- 
idence of  intention  is  inadmissible,  unless  the  two  claimants 
whose  description  by  extrinsic  evidence  creates  the  ambigu- 
ity answer  the  designation  of  the  will  with  an  equal  degree 
of  accuracy;  and  although  the  better  opinion  is  as  I  have 
stated  it  above,  yet,  except  in  such  cases,  it  is  the  safer 
practice,  in  jurisdictions  where  the  rule  is  not  settled,  to 
rely  on  evidence  of  testator's  situation  and  relation  to  the 
claimants,  and  his  usages  of  speech  in  regard  to  them,  if 
these  are  sufficient,  rather  than  on  direct  evidence  of  his 
intention.  Of  course,  where  direct  evidence  of  intention 
is  admissible,  any  fact  or  circumstance  which,  from  expe- 
rience or  observation,  may  fairly  be  presumed  to  have  had 
an  influence  on  his  mind  in  inducing  him  to  prefer  one  of  the 
persons  described  by  him  to  another,  is  admissible  to  prove 
his  intention.49 


will  or  proof  dehors  the  instrument 
it  can  be  ascertained  who  was  actu- 
ally intended.  Second  United 
Presbyterian  Church  v.  First 
United  Presbyterian  Church,  71 
Nebr.  563,  99  N.  W.  Rep.  252. 
48  See  Doe  ex  dem.  Hiscocks  v. 
Hiscocks,  5  Mees.  &  W.  363; 
Charter  v.  Charter,  L.  R.  7  H.  of 
L.  564,  s.  c.,  12  Moak's  Eng.  1, 
affi'g  s.  c.,  1  Moak's  Eng.  249,  and 
cases  cited.  The  English  cases  are 
not,  however,  consistent  in  con- 
fining the  admission  of  direct  evi- 
dence of  intention  to  cases  where 
it  fits  both  persons  or  subjects  with 
precisely  equal  accuracy  or  ap- 
propriateness. Earlier  cases  held 
that  in  any  latent  ambiguity  or 
misdescription,  though  there  be 
only  one  claimant  or  subject, 
evidence  of  declarations  of  intent 
is  admissible,  especially  if  made  at 


the  time  of  making  the  will.  Trus- 
tees v.  Peaslee,  15  N.  H.  330,  and 
cases  cited. 

49  Ayres  v.  Weed,  16  Conn.  200. 

The  intention  must  be  gathered 
from  the  will  and  not  from  extrin- 
sic evidence.  Extrinsic  evidence 
may  aid  in  reading  the  intention 
out  of  the  will.  Duensing  v. 
Duensing,  112  Ark.  362,  165  S.  W. 
Rep.  956;  La  Tourette  v.  La  Tour- 
ette,  15  Ariz.  200,  137  Pac.  Rep. 
426,  Ann.  Gas.  1915,  B.  70. 

Verbal  testimony  which  is  ad- 
missible in  the  case  of  an  am- 
biguity will  not  be  admitted  if  it 
has  the  effect  of  changing  the  tes- 
tamentary disposition.  Quinlan's 
Succ.,  118  La.  602,  43  So.  Rep.  249. 

The  declarations  of  the  testator 
are  not  admissible  on  any  ques- 
tion involving  the  construction  of 
his  will.  App.  v  App,  106  Va.  253, 


428 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


102.  — Aid  in  Applying  to  the  Property  Intended. 

The  same  principles  which  regulate  the  resort  to  extrinsic 
evidence  to  aid  in  applying  the  language  to  the  person,  reg- 
ulate it  in  applying  the  language  to  the  property.  Extrinsic 
evidence  is  not  admissible  to  change  a  specific  and  explicit 
designation  of  the  property  given  in  the  will,  so  as  to  sub- 
stitute a  different  subject,  although  part  of  the  description 
be  equally  applicable  to  either  piece  of  property;  ^  and  it 
cannot  be  made  admissible  even  by  showing  that  the  testator 
did  not  own  the  parcel  designated  in  the  will,  and  did  own 
another,  and  that  the  draftsman  made  the  mistake, — for  in- 
stance, to  show  that  he  designated  the  west  half  instead  of 
the  east  half,  or  section  1  instead  of  section  2.51  Nor  can  an 
explicit  and  sufficient  designation  be  enlarged  by  extrinsic 


55  S.  E.  Rep.  672;  Shipley  v.  Mer- 
cantile Trust,  etc.,  Co.,  102  Md. 
649,  62  Atl.  Rep.  814. 

50  Robinson  v.  Williams,  1  Weekly 
Notes  (Pa.),  337. 

Extrinsic  evidence  cannot  be 
introduced  where  there  is  no  am- 
biguity in  the  will.  Scott  v.  Roeth- 
lisberger,  178  Mich.  581, 146  N.  W. 
Rep.  307;  In  re  McVeigh,  181  Mo. 
App.  566,  164  S.  W.  Rep.  673; 
Dale  ».  Dale,  241  Pa.  234,  88  Atl. 
Rep.  445. 

If  the  testator  specified  that 
certain  amounts  of  indebtedness 
are  to  be  deducted  from  certain 
legacies  if  not  paid  during  his  life- 
time, extrinsic  evidence  will  not 
be  admitted  to  dispute  the  amounts 
of  indebtedness  as  specified  by  the 
testator.  Hopper  v.  Sellers,  91 
Kan.  876,  139  Pac.  Rep.  365. 

Where  there  is  an  imperfect 
description  of  the  property  be- 
queathed, extrinsic  evidence  may 
be  introduced  to  correct  it,  but  the 


declarations  of  the  testator  are  not 
admissible  for  this  purpose.  In 
re  Dominici,  151  Cal.  181,  90  Pac. 
Rep.  448. 

51  Fitzpatrick  v.  Fitzpatrick,  36 
Iowa,  674,  s.  c.,  14  Am.  Rep.  533, 
and  cases  cited;  Kurtz  v.  Hibner, 
55  111.  514,  s.  c.,  8  Am.  R.  665,  669. 
But  see  criticisms  on  this  doctrine 
in  10  Am.  L.  Reg.  N.  S.  94, 353,  and 
see  1  Redf.  on  W.  584  (11),  and 
cases  cited.  In  some  such  cases, 
the  false  word  or  number  may  be 
rejected. 

Where  a  testator  devises  the 
"north  half"  of  a  piece  of  prop- 
erty, "comprising  80  acres,"  and 
it  is  found  that  the  testator  does 
not  own  such  half,  the  court  may 
strike  out  the  false  word  "north," 
if  the  extrinsic  evidence  shows  that 
the  testator  owned  a  tract  of  80 
acres  which  constituted  the  east 
half  of  the  said  piece  of  property. 
Felkel  t>.  O'Brien,  231  111.  329,  83 
N.  E.  Rep.  170. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


429 


evidence  that  the  testator  meant  more  than  the  words  will 
bear;  for  instance,  that  by  " moneys"  he  meant  to  pass  choses 
in  action,  securities,52  etc. 

103.  — Identifying  the  Property. 

If  the  subject  of  the  bequest  is  indicated  in  the  will  by 
words  which  do  not  have  a  fixed  legal  meaning,  and  espe- 
cially words  which  refer  to  extrinsic  circumstances, — for 
example,  a  devise  of  "the  home  and  garden  I  now  live  in,"- 
the  meaning  is  to  be  ascertained  by  evidence  explaining 
what  were  those  extrinsic  circumstances,53  at  the  time  re- 
ferred to  hi  the  will,54  and  a  fortiori,  if  the  designation  bears 
no  sufficient  signification  to  a  reader  unaided  by  extrinsic 
evidence — for  example,  a  devise  of  "all  my  back  lands,"- 
evidence  is  admissible  of  the  declarations  of  the  testator 
before  and  after  the  making  of  the  will,  showing  his  habit 


52  Thus,  where  the  testator  gives 
his  wife  "all  the  rest,  etc.,  of  the 
moneys  belonging  to  my  estate  at 
the  time  of  my  decease,"  extrinsic 
evidence  is  not  admissible  of  his 
intention  to  leave  securities  to  her; 
nor  that  he  had  been  accustomed  to 
support  the  family  from  the  pro- 
ceeds of  such  securities,  and  made 
an  otherwise  inadequate  provision 
for  her.  Mann  v.  Mann,  14  Johns. 
1,  affi'g  1  Johns.  Ch.  231;  but  com- 
pare Knight  v.  Knight,  30  L.  J. 
Ch.  644. 

Where  the  testator  makes  a  be- 
quest of  "all  personal  effects  be- 
longing to  me  and  on  storage"  and 
makes  no  further  reference  to  per- 
sonal property  in  his  will,  the  bene- 
ficiary will  receive  all  of  the  per- 
sonal estate  except  certain  specific 
legacies  of  sums  of  money.  Matter 
of  Donohue,  46  N.  Y.  Misc.  370, 
94  N.  Y.  Supp.  1087. 


53  Doe  ex  dem.  Clements  v. 
Collins,  2  T.  R.  498. 

Extrinsic  evidence  is  admissible 
to  aid  the  court  in  ascertaining 
the  subject-matter  of  a  bequest 
or  the  object  of  the  testator's 
bounty.  Hall  v.  Grand  Lodge, 
I.  0.  0.  F.,  55  Ind.  A.  324,  103 
N.  E.  Rep.  854;  Temple  v.  Bradley, 
119  Md.  602,  87  Atl.  Rep.  394. 

Where  the  testator  makes  a  de- 
vise to  "William  Wilson's  chil- 
dren" and  he  had  no  relative  by 
the  name  of  William  Wilson,  ex- 
trinsic evidence  may  be  introduced 
to  show  who  was  intended.  Mil- 
ler's Estate,  26  Pa.  Super.  Ct.  443. 

"Stanford  v.  Lyon,  8  Vroom 
(N.  J.),  426,  s.  c.,  18  Am.  Rep.  736. 

Extrinsic  proof  may  be  heard  to 
show  what  the  testator  meant  by 
"my  home  farm,"  P'Simer  v. 
Steele,  32  Ky.  Law  Rep.  647,  106 
S.  W.  Rep.  851. 


430 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


in  the  use  of  such  expression,  and  what  property  he  was 
accustomed  to  designate  in  this  way.55  Upon  this  prin- 
ciple, evidence  that  he  and  his  steward  were  accustomed  to 
call  the  estate  by  the  name  used  in  the  will,  and  their  entries 
of  that  name  in  their  accounts,  are  competent.56  And  as  a 


"Ryerss  v.  Wheeler,  22  Wend. 
148. 

Where  a  conveyance  describes 
all  the  land  between  the  "beach 
and  highway"  the  grantee  might 
adopt  the  beach  at  low  water  or  at 
high  water,  whichever  is  most 
favorable  to  him.  Merwin  v. 
Backer,  80  Conn.  338,  68  Atl.  Rep. 
373. 

A  devise  of  "my  farm  of  95 
acres  in  Fillmore  County"  is  not 
void  for  uncertainty;  extrinsic 
evidence  may  be  introduced  to 
identify  the  property.  Sorenson 
v.  Carey,  96  Minn.  202,  104  N.  W. 
Rep.  958. 

A  devise  by  a  testator  of  all  his 
"upland"  is  not  void  for  uncer- 
tainty. Whatever  land  it  can  be 
shown  he  had  in  his  mind  and  in- 
tended to  dispose  of  by  describing 
it  as  "upland"  passes  to  the  de- 
visee; if  he  owned  only  "bottom" 
lands  and  "second  bottom"  lands, 
the  ambiguity  can  be  cured  by 
extrinsic  evidence  to  show  that  he 
regarded  the  "second  bottom" 
lands  as  uplands.  Vandiver  v. 
Vandiver,  115  Ala.  328,  22  So. 
Rep.  154. 

Where  the  will  contains  a  de- 
vise of  the  "David  D.  A.  Worten- 
dyke  Farm,"  extrinsic  evidence  is 
admissible  to  show  that  the  tes- 
tator owned  three  tracts  which  he 
bought  from  Wortendyke  and  all 


three  of  which  he  regarded  as  one 
farm.  Ackerman  v.  Crouter,  68 
N.  J.  Eq.  49,  59  Atl.  Rep.  547. 

The  question  of  description  of 
property  is  one  of  degree  only, 
and  if  the  devise  be  of  an  entire 
plantation,  parol  evidence  is  admis- 
sible to  ascertain  the  geographical 
extent  and  limit  of  the  property 
covered  thereby.  Flannery  v.  High- 
tower,  97  Ga.  592,  25  S.  E.  Rep. 
371. 

Where  the  will  describes  lands 
by  government  boundaries  with- 
out naming  the  sections,  parol 
evidence  is  admissible  to  supply 
them.  Higgin  v.  Tennessee  Coal, 
etc.,  Co.,  184  Ala.  639,  62  So.  Rep. 
774. 

Where  the  will  refers  to  lands 
in  "range  9"  and  the  only  lands 
testator  owned  were  in  range  10, 
parol  evidence  may  be  relied  on  to 
supply  the  correct  designation. 
Pemberton  v.  Perrin,  94  Neb.  718, 
144  N.  W.  Rep.  164,  Ann.  Cas. 
1915,  B.  68. 

56  Ib.  and  cases  cited.  It  was 
there  said  that  evidence  of  such 
declarations  at  the  time  of  executing 
the  will  would  not  be  competent. 
But  see  Ex  p.  Hornby,  2  Bradf. 
420.  The  sculptor  Nolleken's  will 
provided  that  "all  the  marble  in 
the  yard,  the  tools  in  the  shop, 
bankers,  mod.  tools  for  carving," 
shall  be  the  property  of  A.  (a  favor- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


431 


general  principle,  if  the  subject  of  the  bequest  is  described 
by  reference  to  an  extrinsic  fact,  extrinsic  evidence  is  com- 
petent to  show  what  was  intended.57 

104.  — Rejecting  False  Words. 

When  resort  to  extrinsic  evidence  has  shown  that  the 
description  is  false  in  part,  the  false  part  may  be  rejected,  if 
the  residue,  with  the  aid  of  the  extrinsic  evidence  properly 
applicable,  will  be  legally  sufficient  to  indicate  the  gift. 
Thus  a  bequest  of  bank  stock,  describing  it  as  stock  in  the 
A.  bank,  will  pass  stock  in  the  B.  bank,  if  that  was  the  testa- 
tor's only  bank  stock;  for  after  the  name  of  the  bank  is  re- 


ite  and  long  employed  workman). 
Extrinsic  evidence  was  admitted 
that  in  the  trade  "mod."  would  be 
understood  as  meaning  models, 
and  that  there  were  no  such  tools 
known  as  modeling  tools  for  carv- 
ing; also  of  the  relative  value  of  the 
moulds  and  models,  and  of  the 
personal  relations  between  the 
testator  and  legatee.  Goblet  v. 
Beechey,  3  Sim.  24.  Reversed,  on 
the  ground  that  the  models  were 
otherwise  bequeathed.  4  R.  &  M. 
624. 

The  term  "household  furniture" 
includes  all  personal  chattels  which 
contribute  to  the  use  or  conven- 
ience of  the  householder  and  to  the 
ornament  of  the  house,  such  as 
plate,  linen,  china,  both  useful  and 
ornamental,  and  pictures.  A  be- 
quest of  "furniture"  means  the 
same  as  one  of  "household  furni- 
ture." Matter  of  Kathan,  153 
N.  Y.  Supp.  366,  90  Misc.  540. 

57  Thus,  where  testatrix  directed 
that  a  mortgage  on  her  house  be 
paid,  and  also  "all  debts  now  due 
to"  certain  persons  named,  to  an 


amount  specified,  extrinsic  evi- 
dence that  the  only  mortgage  on 
the  house  was  the  one  made  with 
her  assent,  by  a  person  who  owned 
it  jointly  with  herf  and  that  the 
same  person  owed  debts  of  the 
amount  specified  to  the  persons 
named,  was  competent  to  show  that 
these  were  intended.  Pritchard 
v.  Hicks,  1  Paige,  270. 

A  legacy  of  the  "contents"  of  a 
safe  deposit  box,  a  desk  or  a  chest, 
plainly  means  whatever  might  be 
therein  at  the  time  of  the  death 
of  the  testator.  If  the  contents  of 
the  box  are  specifically  mentioned, 
and  merely  described  as  being  in 
the  box,  and  the  language  of  the  will 
does  not  localize  the  subject  of  the 
legacy,  it  might  be  immaterial 
whether  the  articles  thus  mentioned 
remained  in  the  box  or  not.  In  re 
Thompson,  217  N.  Y.  Ill,  111  N. 
E.  Rep.  762. 

The  term  "money  in  bank" 
includes,  not  only  checking  ac- 
counts, but  also  time  and  savings 
deposits  of  the  testator  as  well. 
Lyons  v.  Lyons,  224  Fed.  Rep.  772. 


432 


ACTIONS   BY    AND    AGAINST   HEIRS   AND 


jected,  enough  is  left  to  ascertain  the  thing  by; 58  but  this 
cannot  be  done  where,  after  rejecting  the  false  designation, 
the  bequest  is  left  uncertain.59  If,  however,  all  the  words 


58  Roman  Catholic  Asylum  v.  Em- 
mons,  3  Bradf.  144.  But  there 
being  a  corporation  in  Dedham, 
entitled  "The  President,  Directors 
and  Company  of  the  Dedham 
Bank,"  and  generally  called  "The 
Dedham  Bank,"  a  bequest  of 
"all  moneys  due  me,  at  the  time  of 
my  decease,  from  Dedham  Bank, 
Dedham,  Mass.,"  will  not  pass  a 
deposit  in  "Dedham  Institution 
for  Savings,"  though  generally 
known  as  the  Dedham  Savings 
Bank,  and  though,  at  the  date  of 
the  will,  testator  had  a  deposit 
there.  This  is  not  a  case  of  false 
description;  for  testator  refers  to 
what  may  be  at  the  time  of  death. 
American  Bible  Society  v.  Pratt,  9 
Allen,  109;  approved  in  1  Redf.  on 
W.  665,  n.  Where  testator  gave 
a  specified  "part  of  my  stock  in 
the  $4  per  cent,  annuities";  and 
it  appeared  that  he  had  previously 
sold  all  such  stock  and  reinvested 
the  proceeds  hi  long  annuities. 
Held,  that  evidence  of  the  situa- 
tion of  the  funds  was  admissible; 
but  direct  evidence  of  testator's 
intent,  and  the  scrivener's  mistake 
in  copying  from  an  old  will,  was 
not.  See  Redfield's  comments  on 
Selwood  v.  Mildmay,  3  Ves.  306, 
in  1  Redf.  on  W.  597,  and  n. 

Where  a  testator  devises  "lot 
78"  in  a  certain  block,  and  he  did 
not  own  such  lot,  but  did  own  lot 
68  in  said  block,  it  must  be  shown 
that  he  owned  only  lot  68  in  such 
block  before  the  court  will  sub- 


stitute 68  for  78.  Oliver  v.  Hen- 
derson, 121  Ga.  836,  49  S.  E.  Rep. 
743,  104  Am.  St.  Rep.  185. 

Parol  evidence  cannot  be  in- 
troduced for  the  purpose  of  show- 
ing that  a  mistake  was  made  by 
writing  "Section  24"  instead  of 
"Section  14."  Equity  will  not 
entertain  a  bill  to  reform  a  will 
under  the  guise  of  an  attempt  to 
construe  the  will.  Lomax  v.  Lo- 
max,  218  111.  629,  75  N.  E.  Rep. 
1076,  6  L.  R.  A.  N.  S.  942. 

Where  the  will  devises  the  south- 
east one-quarter  of  a  section  of 
land  and  the  only  land  the  testator 
owned  was  the  southwest  one- 
quarter  of  such  section,  the  word 
southeast  may  be  rejected  and  then 
by  extrinsic  evidence  the  subject 
of  the  devise  can  be  ascertained. 
Eckford  v.  Eckford,  91  Iowa,  54, 
58  N.  W.  Rep.  1093,  26  L.  R.  A. 
370;  Christy  v.  Badger,  72  Iowa, 
581, 34  N.  W.  Rep.  427. 

89  Thus,  where  the  only  descrip- 
tion was  "the  farm  I  now  occupy," 
it  was  held  that  the  words  "I  now 
occupy,"  could  not  be  rejected, 
because  no  sufficient  designation 
would  be  left.  Hence  extrinsic  evi- 
dence that  the  testator  intended 
by  this  to  give  all  his  real  estate 
at  W.,  including  a  farm  occupied 
by  a  tenant,  was  not  admissible. 
THOMPSON,  J.,  Jackson  v.  Sill,  11 
Johns.  201.  But  where  the  de- 
scription was  "the  old  homestead, 
whereon  I  lived  at  the  time  of 
making  my  will,  containing  100 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


433 


can  be  consistently  applied,  though  some  of  them  restrict 
others  which  alone  would  have  been  sufficient,  the  court  will 
not  reject  the  restrictive  words.60 


acres, — Held,  that  the  property 
was  identified  by  the  designation 
"old  homestead,"  there  being  evi- 
dence that  this  100-acre  farm  had 
always  been  known  by  that  name 
in  the  family;  and  that  the  words, 
"whereon  I  lived,  &c.,"  did  not 
let  in  parol  evidence  of  the  extent 
of  testator's  occupation,  or  of  his 
declarations  as  to  the  boundary. 
Waugh  v.  Waugh,  28  N.  Y.  94.  So 
where  the  description  was  "my 
farm  at  B.  in  the  tenure  of  J.  S.," 
and  part  of  the  farm  was  not  in 
his  tenure — Held,  that  the  latter 
clause  might  be  rejected.  Ld. 
MANSFIELD,  Goodtitle  v.  Paul,  2 
Burr.  1089.  So  in  a  devise  of  "all 
the  land  I  own,  which  lies  along 
the  S.  Creek,  and  known  by  the 
name  of  T.'s  patent,"  the  latter 
clause  may  be  rejected  on  parol 
evidence  that  the  farm  lying  along 
the  creek  was  not  in  T.'s  patent, 
and  that  the  lot  in  T.'s  patent  did 
not  lie  along  the  creek.  Doe  v. 
Roe,  1  Wend.  541.  In  this  case, 
the  ambiguity  being  latent,  the 
scrivener's  testimony  to  the  testa- 
tor's instructions,  and  to  his  own 
mistake,  was  admitted.  So  a  de- 
vise of  the  M.  farm,  containing 
eight  fields,  may  pass  nine  fields, 
by  extrinsic  evidence  that  he  oc- 
cupied nine.  This  renders  the 
restriction  to  eight  void  for  un- 
certainty. Coleman  v.  Eberly, 
76  Penn.  St.  197. 

No  inapt  use  of  words  by  a  tes- 
tator may  defeat  his  manifest  in- 


tention, unless  they  compel  the 
application  of  some  rule  of  law 
which  itself  defeats  testamentary 
intention.  In  re  Garrett,  249  Pa. 
249,  94  Atl.  Rep.  927. 

The  court  must  confine  itself 
to  construing  the  will.  It  cannot 
make  a  new  one.  It  may  insert 
or  leave  out  provisions,  if  neces- 
sary, but  only  in  aid  of  the  testa- 
tor's intent  and  purpose.  Nolan  v. 
Nolan,  169  App.  Div.  372,  154 
N.  Y.  Supp.  355. 

60  Thus  by  a  gift  of  "all  my  lands 
in  lot  25,  in  H.  Patent,  lying  in  the 
County  of  G.,"  such  only  of  tes- 
tator's lands  in  the  lot  and  patent 
named,  as  lie  in  G.  will  pass.  The 
court  will  not  reject  an  intelligible 
and  applicable  restriction,  merely 
because  the  general  words  are 
enough  without  it.  Hunter  v. 
Hunter,  17  Barb.  85,  s.  P.,  Pedley  v. 
Dodds,  L.  R.  2  Eq.  819.  But  if, 
instead  of  "all  my  lands  in  lot 
25,  &c.,  lying  in  G.,"  testator  had 
written  "all  my  B.  estate,  which 
lies  in  G.,"  parol  evidence  would 
be  admissible  to  show  that  he 
habitually  called  the  whole  prop- 
erty his  B.  estate,  and  the  court 
might  reject  the  partially  incon- 
sistent words,  "which  lies  in  G." 
Doe  v.  Earl  of  Jersey,  1  B.  &  Aid. 
550,  3  B.  &  Cr.  870. 

The  court  must  get  the  intention 
of  the  testator  from  the  words  he 
has  used.  Baker  v.  Gerow,  126 
N.  Y.  Supp.  277. 

A    testamentary    intention    de- 


434 


ACTIONS    BY   AND    AGAINST   HEIRS   AND 


105.  — Uncertainty  as  to  Which  of  Two  Parcels. 

As  in  the  case  of  an  equivocal  designation  of  the  benefi- 
ciary, so  hi  the  case  of  a  similar  ambiguity  as  to  the  property 
given,  if  it  is  shown  that  a  designation  in  the  will,  which 
upon  its  face  is  unambiguous  and  sufficient,  applies  equally 
in  all  its  parts  to  more  than  one  subject — as  where  a  testator 
devises  his  manor  of  S.,  and  it  appears  that  he  has  two  such, 
one  of  North  S.  and  one  of  South  S. — extrinsic  evidence  must 
determine  which  passes;  and  for  this  purpose  the  testator's 
declaration  of  intention  may  be  proved.61  This  rule  applies 
also  where  realty  is  described  as  personalty  and  vice  versa. 
Thus  a  bequest  of  land  will  pass  a  mortgage  on  the  land  if 
testator  had  no  other  interest.62 


clared  in  a  lawful  manner  and 
having  a  legal  purpose  has  para- 
mount potency  and  cannot  be 
thwarted  or  nullified.  It  overrides 
the  inadequacy  or  incorrectness 
of  the  language  or  the  punctuation, 
or  any  crudity  of  the  will.  To 
effectuate  it  the  courts  will  trans- 
pose or  insert  or  disregard  words 
of  phrases.  Eidt  v.  Eidt,  203  N.  Y. 
325,  96  N.  E.  Rep.  729,  rev'g 
142  N.  Y.  App.  Div.  733, 127  N.  Y. 
Supp.  680. 

61  See  paragraph  97  (above)  for 
the  limits  of  this  rule.  Where  a 
devise  is  of  lands  described  as 
being  in  a  specified  parish  or  town, 
and  the  expression  does  not  indi- 
cate an  exclusion  of  lands  beyond 
its  true  limits,  extrinsic  evidence 
is  admissible  to  show  that  the 
whole  lands  were,  at  the  date  of 
the  will,  by  common  repute  and  in 
the  understanding  of  the  testator, 
within  the  parish  or  town.  See  1 
Redf .  on  W.  650-4,  and  cases  cited. 
Where  usage  differed  as  to  the 
limits  indicated  by  a  geographical 


name  used  in  the  description,  evi- 
dence of  testator's  usage  of  the 
term  would  be  competent.  Where 
the  testator  devises  all  of  his  "up- 
land," and  there  is  evidence  that 
the  testator  has  no  "upland" 
strictly  so  called,  but  that  his  lands 
were  "bottom"  and  "second  bot- 
tom" or  "bench"  lands,  evidence 
of  the  intention  of  the  testator  in 
making  the  devise  is  competent; 
and  for  the  purpose  of  showing  his 
intention,  the  declarations  of  the 
testator  at  the  time  of  making  the 
will  are  admissible  in  evidence. 
Vandiver  v.  Vandiver,  115  Ala. 
328,  22  So.  Rep.  154. 

Where  the  testator  devises  prem- 
ises "known  as  250  Fifth  Avenue," 
extrinsic  evidence  may  be  intro- 
duced to  show  that  the  testator 
intended  to  include  a  lot  and  stable 
at  1  West  28th  Street,  adjoining 
the  premises  at  the  rear.  Clark  v. 
Goodridge,  51  N.  Y.  Misc.  140,  100 
N.  Y.  Supp.  824. 

62  Woods  v.  Moore,  4  Sandf.  579. 
But  if  the  words  of  the  will  are  in- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


435 


The  principles  which  contend  for  control  in  this  class  of 
questions  are,  that,  on  the  one  hand,  where  a  devise  is  in 
general  terms,  subsequent  words  of  description,  restriction, 
exception,  or  limitation,  should  control  the  general  terms; 
but,  on  the  other  hand,  where  the  primary  or  larger  descrip- 
tion is  sufficiently  specific  and  certain  to  indicate  the  intent, 
words  of  identification  inconsistent  with  it  may  be  rejected 
as  false  or  mistaken.63 


106.  Nature  of  Estate  Given. 

Where  the  words  of  the  will  are  not  ambiguous,  and  no 
latent  ambiguity  or  " equivocation"  is  produced  by  extrinsic 
evidence,  it  is  not  competent  to  adduce  evidence  of  the 
declarations  of  the  testator  or  his  instructions  to  the  drafts- 
man, for  the  purpose  of  showing  that  a  different  estate  or 
interest  from  that  indicated  was  intended,64  as,  for  instance, 


sufficient  to  carry  real  estate,  it 
is  not  competent  to  show,  from  the 
condition  of  the  testator's  prop- 
erty, or  his  own  memoranda  and 
declarations,  that  he  must  have 
so  intended.  Allen's  Ex'rs  v. 
Allen,  18  How.  U.  S.  385,  1  Redf. 
on  W.  606,  note. 

Uncertainty  of  meaning  may 
arise  as  well  by  application  of  the 
words  of  a  will  to  the  subject  with 
which  it  deals  as  from  the  words 
of  the  will  themselves.  Boeck's 
Will,  160  Wis.  577,  152  N.  W.  Rep. 
155,  L.  R.  A.  1915,  E.  1008. 

63  For  an  illustration  of  the  argu- 
ments, pro  and  con.,  see  Van  Kleck 
».  Dutch  Church,  20  Wend.  456, 
where  the  court,  including  BRON- 
SON,  BEARDSLEY,  NELSON,  COWEN, 
JJ.,  and  others  were  equally  di- 
vided on  such  a  question. 

Generally  speaking  the  testa- 
ment bears  its  own  testimony,  but 


where  the  description  of  the  prop- 
erty sought  to  be  devised  is  so 
uncertain  as  to  leave  in  doubt  what 
was  the  subject  of  disposition, 
parol  evidence  is  to  be  received  and 
considered.  Such  evidence  is  re- 
ceived, not  to  contradict  the 
provisions  of  the  will,  but  to  ex- 
plain to  what  particular  pieces 
of  land  the  language  of  the  will 
referred.  In  re  Phipps,  214  N.  Y. 
378,  108  N.  E.  Rep.  554. 

"Ehrman  v.  Hoskins,  67  Miss. 
192, 19  Am.  St.  Rep.  297, 6  So.  Rep. 
776;  Hill  v.  Felton,  47  Ga.  455,  s.  c., 
15  Am.  R.  643,  654.  And  where 
the  question  was  whether  the  de- 
vise was  of  a  life  estate  or  a  fee — 
Held,  that  evidence  that  the  lands 
were  wild  and  uncultivated  was 
inadmissible.  Charter  v.  Otis,  41 
Barb.  525.  Contra,  Sargent  v. 
Tonne,  10  Mass.  303. 

A  devise  by  a  husband  to  his 


436 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


that  a  gift  so  expressed  as  to  vest  in  interest  at  testator's 
death,  was  intended  to  lapse  if  the  beneficiary  did  not  sur- 
vive until  it  vested  in  possession.65 

107.  Raising  a  Trust. 

Extrinsic  evidence  to  charge  the  apparent  beneficiary  as 
trustee  for  a  third  person  is  competent  only  when  the  intent 
is  shown  to  have  been  communicated  to  the  apparent  ben- 
eficiary,66 or  when  admissible  on  principles  previously  ex- 
plained to  aid  in  interpretation,  or  where  the  legatee  is  named 
as  a  trustee,  or  where  the  probate  court  could  afford  no  rem- 
edy, or  where  one  name  was  fraudulently  inserted  for  the 
other.67 

108.  Aid  in  Executing  the  Will. 

There  are  several  classes  of  cases  where  the  language  of 
each  disposition  of  the  will  is  clear,  but  extrinsic  evidence 


wife  of  certain  lands  does  not  bar 
her  dower  in  the  husband's  re- 
maining real  estate,  unless  it  ap- 
pears clearly  from  the  will  that 
the  devise  was  in  lieu  of  dower. 
Cowdrey  v.  Cowdrey,  72  N.  J.  Eq. 
951,  67  Atl.  Rep.  Ill,  12  L.  R.  A. 
N.  S.  1176. 

65  Ordway  v.  Dow,  55  N.  H.  11. 

Where  a  will  contains  only 
money  legacies,  and  makes  no 
mention  of  or  reference  to  real 
estate,  extrinsic  evidence  cannot 
be  introduced  to  show  that  the 
testator  intended  that  the  legacies 
should  be  a  charge  on  the  real 
estate.  Fries  v.  Osborn,  190  N.  Y. 
35,  82  N.  E.  Rep.  716,  19  L.  R.  A. 
N.  S.  457. 

«« Robotham  ».  Dunnett,  26  W. 
R.  530,  and  cases  cited. 

"Where  a  testator  makes  a  de- 
vise or  bequest  absolute  in  from 
but  upon  a  private  understanding 


with  the  devisee  or  legatee  that 
he  will  apply  the  estate  to  objects 
named  by  the  testator,  a  trust 
arises  which  a  court  of  equity  will 
enforce  and  this  whether  the  trust 
arises  through  expressed  promise 
of  the  devisee  or  legatee  or  his 
assent  which  may  be  implied  from 
his  silence."  Fickes'  Estate,  59 
Pa.  Super.  Ct.  535. 

67 1  Redf.  on  Wills,  60,  citing  1 
Ho.  of  L.  Cas.  191;  Gaines  v. 
Chew,  2  How.  U.  S.  619.  Compare 
Irvine  v.  Sullivan,  L.  R.  8  Eq.  673; 
Collier  v.  Walters,  L.  R.  17  Eq. 
252,  s.  c.,  7  Moak's  Eng.  798;  Duke 
of  Cumberland  v.  Graves,  9  Barb. 
595.  It  seems  that  a  devisee  may 
also,  in  some  cases,  upon  parol 
proof  of  testator's  agreement  to 
devise  to  another,  be  held  a  trustee 
for  that  other.  Rowland  Will 
Case,  4  Am.  Law  Rev.  661,  and 
cases  cited. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  437 

is  necessary  to  guide  the  administration  in  carrying  them 
into  effect.  It  will  be  seen  that  it  is  allowed  in  these  cases, 
not  to  alter  the  meaning  of  the  will,  but  to  confirm  and  in- 
sist on  it  when,  without  such  evidence,  equity  would  in 
some  way  dispense  with  the  literal  fulfillment  of  the  language. 
As  a  general  principle,  after  extrinsic  evidence  to  rebut 
such  a  presumption  has  been  received,  but  not  before,  the 
like  evidence  is  admissible  to  support  the  presumption,  that 
is  to  say,  to  contradict  the  extrinsic  evidence  first  given.68 

109.  — as  to  the  Administrative  Character  of  the  Gift. 

Extrinsic  evidence  is  admissible  to  aid  in  determining 
whether  a  bequest  of  stock  is  a  specific  or  a  pecuniary  leg- 
acy; 69  and  where  the  will  designates  a  specific  fund  which 
extrinsic  evidence  shows  does  not  exist,  extrinsic  evidence  is 
admissible  to  show  that  such  fund  formerly  existed,  and 
how  the  mistake  arose;  and,  in  a  proper  case,  the  legacy  may 
upon  such  evidence  be  sustained  as  a  general  gift  payable 
out  of  the  estate.70  But  the  necessary  legal  consequences 
involved  in  an  expressed  intention  cannot  be  varied  by 
extrinsic  evidence.  Thus  since  the  gift  of  a  specific  legacy 
entitles  the  legatee  to  its  income,  not  as  an  equitable  pre- 
sumption of  intention,  but  as  a  matter  legally  included  in 
the  gift,  in  such  case  extrinsic  evidence  is  not  admissible  to 

68  Phillips    v.    McCoombs    (be-      M.  689,  rev'g  3  Sim.  563.    And  see 
low);  1  Redf.  on  Wills,  647;  Hall      Pierrepont  v.  Edwards,  25  N.  Y. 
v.  Hill,  1  Dru.  &  War.  94,  116.  }28. 

Where  the  language  of  wills  has  70  Lindgren  v.  Lindgren,  9  Beav. 

been   inexact   or   ambiguous,    the  358,  363.     Compare  28  Id.  484, 

courts  frequently  transpose  or  in-  520. 

sert  words  or  phrases,  or  even  leave  Where  a  testator  bequeaths  five 

out  or  insert  provisions  in  order  to  shares  of  bank  stock,   and  it  is 

effectuate    an    intention    that    is,  found  he  did  not  own  any  such 

with  reasonable   certainty,   to  be  shares,  extrinsic  evidence  may  be 

gathered  from  the  whole  text  of  introduced  to  show  that  he  intended 

the  instrument.     Matter  of  Rob-  five  shares  which  he  treated  as  his 

bin,  152  N.  Y.  Supp.  1067,  89  Misc.  own  but  which  never  belonged  to 

345.  him.     Paulus  v.  Besch,   127  Mo. 

69  Boys  v.  Williams,  2  Russ.  &  App.  255,  104  S.  W.  Rep.  1149. 


438 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


show  the  intention  of  the  testator,  as  to  the  income  of  such 
legacies,  where  the  will  is  silent.71 


110.  — as  to  Bequest  to  Creditor. 

Where  it  appears  that  one  to  whom  a  legacy,  expressed  in 
terms  appropriate  to  a  pure  gift,  was  a  creditor  of  the  testa- 
tor, the  court  will  not  presume  that  the  bequest  was  intended 
to  satisfy  the  debt,  if,  by  reason  of  the  amount  or  the  time 
for  payment,  the  bequest  would  not  be  as  beneficial  as 
ordinary  payment  by  the  estate; 72  and  in  such  case  extrinsic 
evidence  that  the  testator  only  intended  to  satisfy  the  debt 
is  not  competent.73  Where  the  bequest  and  the  debt  are 
such  that  an  equitable  presumption  arises  that  the  bequest 
was  intended  hi  satisfaction,  then  extrinsic  evidence,  even 
by  the  declarations  of  the  testator,  is  admissible  to  rebut 
the  presumption,  because  it  simply  tends  to  show  that  he 
intended  precisely  what  the  will  says.74  The  rule  is  in  no 


71  Loring  v.  Woodward,  41  N.  H. 
391;  1  Redf.  on  Wills,  665,  §73. 
Whether  parol  evidence  to  show 
that  testator  intended  to  dispose 
of  property  not  his  own  is  admis- 
sible for  the  purpose  of  putting  a 
beneficiary  to  an  election, — see 
note  to  Dillon  v.  Parker,  1  Swanst. 
402,  403,  2  Wms.  Ex'rs,  6  Am.  ed. 
1550;  Havens  v.  Sackett,  15  N.  Y. 
365. 

A  bequest  of  "my  stock,  stand- 
ing in  my  name,  on  the  books  of 
the  N.  B.  Corporation,"  is  specific 
and  identifies  the  property.  In 
re  Noon,  49  Or.  286,  90  Pac.  Rep. 
673,  88  Pac.  Rep.  673. 

The  presumption  is  that  in  a  will 
of  personal  property  the  intention 
of  the  testator  is  that  the  will  shall 
speak  as  of  the  time  of  his  death, 
but  this  presumption  in  the  case 


of  specific  legacies  may  be  rebutted 
when  the  nature  of  the  property 
or  thing  bequeathed,  or  the  lan- 
guage used  by  the  testator  in  mak- 
ing the  bequest,  indicates  that  he 
intended  it  to  speak  as  of  the  time 
of  making  the  will.  In  re  Thomp- 
son, 217  N.  Y.  Ill,  111  N.  E.  Rep. 
762. 

As  to  specific  legacies,  a  will 
speaks  as  of  the  time  of  its  exe- 
cution. Burt  v.  Harris,  152  N.  Y. 
Supp.  956. 

72  See  Fort  v.  Gooding,  9  Barb. 
371,  and  cases  cited. 

73  Phillips    v.    McCoombs,    Oct. 
1873,  Gas.  in  N.  Y.  Ct.  App.,  Opin. 
of  DOOLITTLE,  J.,  approved  in  53 
N.  Y.  494,  overruling  in  part  Wil- 
liams v.  Crary,  5  Cow.  368,  8  Id. 
246,  4  Wend.  443. 

"Id. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  439 

case  to  admit  extrinsic  evidence  against  construction  upon 
the  words  of  the  will.75 

111.  — or  to  Heirs  or  Next  of  Kin  in  Advance. 

Where  the  will  directs  the  mode  of  dealing  with  advances 
which  the  testator  has  made  to  children  or  others  expecting 
to  share  in  his  estate,  extrinsic  evidence  of  his  intent  in 
making  the  advances  referred  to  is  competent  for  the  pur- 
pose of  determining  what  obligations  are  within  the  terms 
of  the  will.76 

112.  — as  to  Presumptively  Cumulative  Gifts. 

Where  the  same  sum  is  given  twice  in  the  same  will  to  the 
same  legatee,  courts  of  equity  have  recognized  a  presumption 
that  the  latter  sum  is  a  mere  repetition  or  substitution;  but 
where  the  two  gifts  are  in  different  instruments, — e.  g., 
where  one  is  given  by  will  and  the  other  by  codicil,77 — the 
presumption  is  that  both  were  intended.  In  either  case, 
extrinsic  evidence  is  competent  for  the  purpose  of  rebutting 
the  equitable  presumption,78  so  far  as  to  enable  the  court  to 
place  itself  in  the  testator's  situation  at  the  time  of  making 
the  will;  but  his  declarations  cannot  be  proved  to  show  an 
intent  or  motive  in  the  will,  against  its  legal  construction.79 

75  Hall  v.  Hill,  1  Dm.  &  War.  new  legacy  of  $3,000  and  no  more, 

115,  and  cases  cited,  SUGDEN,  L.  C.  and  upon  his  death  it   develops 

76Tillotson  v.  Race,  22  N.  Y.  that  she  is  his  only  next  of  kin, 

122.     Compare   Chase  v.   Ewing,  she  will  receive  the  entire  estate; 

51  Barb.  957.  the  courts  will  not  hold  that  the 

"Or    by    separate    instruments  residue    goes     to     the    testator's 

made  at  the  same  time.     Whyte  next  of  kin  whoever  they  may  be 

v.  Whyte,  L.  R.  17  Eq.  50,  s.  c.,  7  after  eliminating  the  niece.     Wil- 

Moak's  Eng.  672.  kinson  v.  Rosser,  31  Ky.  Law  Rep. 

Where  the  testator  in  his  will  1262,  104  S.  W.  Rep.  1019. 

bequeaths  $3,000  to  his  niece,  re-  78De  Witt  v.  Yates,  10  Johns, 

mainder  to  his  heirs  at  law,  then  156,  and  cases  cited;  and  see  Rus- 

makes  a  codicil  giving  her  $2,000  sell  v.  St.  Aubyn,  L.  R.  2  Chan, 

more,    and    then    makes    another  Div.  405,  s.  c.,  16  Moak's  Eng.  818. 

codicil  revoking  the  previous  lega-  ra  Martin  v.  Drinkwater,  2  Beav. 

cies  to  his  niece,  and  giving  her  a  215,  218. 


440 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


113.  — as  to  Ademption. 

If  a  parent,  or  other  person  in  loco  parentis,  bequeaths  a 
legacy  to  a  child  or  grandchild,  and  afterwards,80  in  his  life- 
time, gives  a  portion  or  makes  a  provision  for  the  beneficiary, 
even  without  expressing  it  to  be  in  lieu  of  the  legacy,  it  will, 
in  general,  be  deemed  a  satisfaction  or  ademption  of  the 
legacy.81  When  a  legacy  is  given  for  a  particular  purpose 
specified  in  the  will,  and  the  testator,  during  his  life,  accom- 
plishes the  same  purpose,  or  furnishes  the  intended  ben- 
eficiary with  money  for  that  purpose,  the  legacy  is  presumed 
to  be  satisfied.82  The  parental  relation  is  evidence  from 
which  it  may  be  inferred  that  payment,  not  a  fresh  gift  was 
intended;  but  this  presumption  may  of  course  be  overcome 


80  A   previous   advance   may   be 
shown    to    be   an    ademption   by 
extrinsic     evidence.       Rogers     v. 
Prince,  19  Geo.  316. 

"Ademption  is  the  extinction 
or  withholding  of  a  legacy  in  con- 
sequence of  some  act  of  the  testator. 
A  gift  will  be  taken  as  an  ademp- 
tion only  when  made  to  a  child 
or  one  to  whom  the  testator  stands 
in  loco  parentis."  Ellard  v.  Ferris, 
91  Ohio  St.  339,  J10  N.  E.  Rep. 
476,  L.  R.  A.  1916,  C.  613. 

81  Langdon  v.  Astor,  16  N.  Y.  9, 
34;  Hine  ».  Hine,  39  Barb.  507, 
and  cases  cited.    Even  though  the 
amount  is  less.    Richards  v.  Hum- 
phreys, 15  Pick.  136.    And  a  re- 
publication  of  the  will  does  not 
necessarily    rebut    the    presump- 
tion.     Paine  v.   Parsons,   14    Id. 
320. 

Where  the  bequest  is  from  a 
person  in  loco  parentis,  parol  and 
other  evidence  is  admissible  to 
show  that  advancements  were  in- 
tended as  an  ademption  of  the 


legacy.  Miller  v.  Payne,  28  App. 
D.  C.  396. 

82  Hine  v.  Hine  (above),  and 
cases  cited.  At  least,  if  the  intent 
were  made  known  to  the  bene- 
ficiary, see  Langdon  v.  Astor,  16 
N.  Y.  37. 

When  a  general  legacy  is  given 
of  a  sum  of  money  without  regard 
to  any  particular  fund,  and  there- 
after the  testator  pays  this  legacy 
to  the  legatee,  or  advances  him 
even  a  small  sum  with  intent  to 
discharge  the  legacy  or  to  substi- 
tute the  advancement  for  the  be- 
quest, the  legacy  is  satisfied  or 
adeemed.  In  re  Brown,  139  Iowa, 
219,  117  N.  W.  Rep.  260. 

Where  a  testator  directed  his 
executors  to  purchase  an  annuity 
for  his  daughter,  the  same  to  be  in 
addition  to  annuities  already  held, 
and  after  the  execution  of  the  will, 
he  himself  purchased  an  additional 
annuity  for  her,  it  was  held  not  to 
be  an  ademption  of  the  legacy. 
Matter  of  Langdon,  153  N.  Y. 
Supp.  574,  89  Misc.  333. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


441 


by  evidence  that  such  was  not  the  intention;  and  such 
evidence  when  admitted,  may  be  answered  by  other  evidence 
of  the  same  character.83  But  the  extrinsic  evidence  is  com- 
petent, in  such  cases,  not  to  vary  the  terms  of  the  will,  but 
to  establish,  on  behalf  of  the  claimants,  the  acts  and  intents 
of  the  testator,  so  as  to  rebut  the  presumption  of  satisfaction 
arising  in  behalf  of  the  adverse  party;  and  it  is  only  when 
such  evidence  has  been  received,  that  extrinsic  evidence  is 
competent  in  reply  in  support  of  the  presumption  of  satisfac- 
tion.84 For  this  purpose  the  declarations  of  the  testator  rel- 
evant to  the  question  whether  the  bequest  was  made  in 
loco  parentis™  as  well  as  those  relative  to  the  question  of 
intent  to  adeem,  are  competent 86  (especially  if  not  contra- 
dictory to  the  terms  of  a  writing),  both  when  made  at  the 
time  of  the  transaction,87  and  when  made  before  or  after  it; M 


83  Langdon  v.  Astor,  16  N.  Y.  34, 
35. 

Where  the  testatrix  is  the  grand- 
mother of  the  legatee,  and  after 
drawing  her  will  makes  a  contract 
with  the  father  of  the  legatee  to 
accomplish  the  same  purpose  for 
which  the  legacy  was  intended, 
the  contract  cannot  be  held  to  have 
been  made  in  satisfaction  of  the 
legacy  because  the  testatrix  clearly 
did  not  stand  in  loco  parentis 
to  the  legatee.  In  re  Younger- 
man,  136  Iowa,  488,  114  N.  W. 
Rep.  7,  15  Ann.  Cas.  245. 

Where  the  testator  was  not  in 
loco  parentis  to  the  legatee,  the 
legacy  is  not  adeemed  unless  it 
appears  on  the  face  of  the  will  to 
have  been  given  for  a  particular 
purpose.  A  legacy  "for  the  use 
and  benefit"  is  not  one  which  can 
be  adeemed  by  reason  of  the  settle- 
ment by  the  testator  of  a  similar 
sum  upon  the  legatee  for  his  bene- 


fit.   In  re  Smythies,  [1903]  1  Ch. 
259. 

•«  Id.;  Hall  v.  Hill  (above);  Rich- 
ards v.  Humpheys,  15  Pick.  139,  2 
Wms.  Ex'rs,  6  Am.  ed.  1412,  1444; 
Miner  v.  Atherton,  35  Perm.  St.  528. 
Contra,  Sims  v,  Sims,  2  Stockt.  Ch. 
(N.  J.)  163. 

85  Powys  v.  Mansfield,  3  Myl.  & 
Cr.  359,  370;  Gill's  Estate,  1  Pars. 
Eq.  Cas.  139.    And  his  acts  also. 
2  Wms.  Ex'rs,  6  Am.  ed.  1446. 

86  Whately  v.  Spooner,  3  Kay  & 
J.  542. 

87  Richards    v.    Humphreys,    15 
Pick.  139. 

88  See  conflicting  authorities  cited 
in  Gilliam  v.  Chancellor,  43  Miss. 
437,  s.  c.,  5  Am.  R.  498. 

Statements  and  declarations 
made  by  the  testatrix  to  witnesses 
at  the  time  the  advancements  were 
made,  and  shortly  thereafter,  that 
the  amounts  advanced  were  to  be 
deducted  from  the  legacy,  form 


442 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


but  they  are  not  competent,  to  construe  the  language  of  the 
will,  except  within  the  general  rules  previously  explained, 
nor  are  they  competent  to  raise  a  presumption  of  ademption 
where  none  would  arise  on  the  face  of  the  will,  in  connection 
with  the  writing  relied  on  as  constituting  the  ademption. 
The  extrinsic  evidence  is  only  admissible  in  such  cases  for 
the  purpose  of  showing  what  the  testator  meant  by  the  act 
other  than  the  will.89  Extrinsic  evidence  is  not  competent 
to  prove  that  a  statement  in  the  will  that  testator  had  made 
an  advancement  was  a  mistake,  for  the  purpose  of  avoiding 
its  deduction.90 

114.  —  as  to  Charging  Legacies. 

If  the  language  of  the  will  is  doubtful  as  to  whether  or  not 
legacies  are  charged  on  real  property,  extrinsic  evidence  of 
the  situation  of  testator  and  his  property,  and  the  surround- 
ing circumstances,  is  competent  to  aid  in  determining  the 
question.91 


part  of  the  res  gestce  and  are  ad- 
missible to  show  the  intent  of  the 
testatrix.  Hine  v.  Hine,  39  Barb. 
507;  Dilley  v.  Love,  61  Md.  603. 

8»  Hall  v.  Hill,  1  Dru.  &  War.  94, 
116. 

*>  Painter  v.  Painter,  18  Ohio, 
247. 

When  a  testator  clearly  ex- 
presses the  intention  that  his  prop- 
erty shall  pass  to  his  children 
equally,  subject  to  charges  against 
them  in  his  book  of  advancements, 
parol  evidence  is  not  competent 
to  show  that  an  advancement 
charged  by  him  in  such  book  was 
not  made.  Younce  v.  Flory,  77 
Ohio  St.  71,  83  N.  E.  Rep.  305. 

91  Hensman  v.  Freyer,  L.  R.  2 
Eq.  627,  3  Ch.  420;  Paxon  v. 
Potts,  2  Green  Ch.  (N.  J.)  321, 
and  cases  cited;  Dey  v.  Dey,  19 


N.  J.  Eq.  (4  C.  E.  Green),  137. 
Such  evidence  was  not  competent 
at  law.  Tole  v.  Hardy,  6  Cow.  333. 

Resort  may  be  had  to  the  cir- 
cumstances attending  the  execu- 
tion of  the  will  to  show  that  the 
testator  contemplated  that  the 
legacies  shall  be  a  charge  on  the 
real  estate,  e.  g.,  if  the  testator's 
personal  estate  was  woefully  di- 
ficient  for  the  payment  of  the 
legacies  it  must  be  inferred  that  he 
intended  the  application  of  his 
real  estate  toward  their  payment. 
But  circumstances  subsequent  are 
not  available  as  they  cannot  aid 
in  the  interpretation  of  the  tes- 
tator's intention.  McManus  v. 
McManus,  179  N.  Y.  338,  72  N.  E. 
Rep.  235. 

Where  legacies  are  pecuniary 
and  general,  and  there  is  a  resid- 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  443 

115.  —  as  to  Execution  of  Power. 

The  question  whether  a  bequest  is  in  execution  of  a  power, 
is  one  of  intention,  and  the  intention  cannot  be  proved  by 
direct  evidence  of  testator's  intention  extrinsic  to  the  will; 
but  evidence  of  the  situation  of  the  testator,  the  surrounding 
circumstances,  and  the  state  and  amount  of  testator's  prop- 
erty at  the  time  of  making  the  will  is  competent,  both  in 
respect  to  realty  (as  was  always  allowed)  and  in  respect  to 
personalty  (as  formerly  was  not  allowed),  for  the  purpose 
of  comparing  the  dispositions  of  the  will  with  the  property 
owned  and  with  that  subject  to  the  power,  and  thence  de- 
ducing an  inference  of  the  intention  to  dispose  of  the  latter 
rather  than  the  former.92  Upon  the  whole  evidence  the  in- 
tention must  be  apparent  and  clear;  if  it  be  doubtful,  the 
act  cannot  be  deemed  an  execution  of  the  power.93 

116.  Time  of  Declarations  Bearing  on  Intention. 
Evidence  of  the  language  of  the  testator  offered  not  as 

direct  proof  of  intent,  but  to  show  his  usages  of  speech,  need 
not  be  confined  to  any  particular  time;  it  is  enough  that  the 
declarations  involve  his  use,  in  other  ways,  of  the  language 

nary  gift  of  both  realty  and  per-  N.  Y.  129,  19  N.  E.  Rep.  628,  8 
sonalty,  it  manifests  an  inten-  Am.  St.  Rep.  717. 
tion  to  charge  the  entire  residue  Where  the  will  does  not  provide 
with  the  legacy.  Pitkin  v.  Peet,  that  the  legacy  is  to  be  charged 
87  la.  268,  54  N.  W.  Rep.  215;  upon  the  entire  estate,  it  is  pay- 
Sloan's  Appeal,  168  Pa.  422,  32  able  only  out  of  the  personalty. 
Atl.  Rep.  42,  47  Am.  St.  Rep.  889;  Newsom  v.  Thornton,  82  Ala.  402, 
Lewis  v.  Darling,  16  How.  (U.  S.)  8  So.  Rep.  261,  60  Am.  R.  743; 
1,  14  L.  Ed.  819.  Lacey  v.  Collins,  134  la.  583,  112 

General  language  in  a  will,  giv-  N.  W.  Rep.  101. 

ing  legacies,  followed  by  the  usual  92  White  v.  Hicks,  33  N.  Y.  394; 

residuary  clause,,  is  alone  insuffi-  Ruding's  Settlement,  L.  R.  14  Eq. 

cient  to  charge  the  legacies  on  the  266. 

realty.    But  it  may  be  established  93  White     v.      Hicks      (above), 

by  extrinsic  evidence  that  it  was  Otherwise  by  statute,  as  to  real 

the  intention  of  the  testator  that  property.     1    N.    Y.    R.   S.    732, 

the  legacies  should  be  charged  on  §  126. 
the   land.     Brill   v.    Wright,    112 


444 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


used  in  the  will,  and  in  the  same  relation  as  there  used.  But 
the  weight  to  be  given  to  such  declarations  may,  of  course, 
vary  much  with  remoteness  in  point  of  time  from  the  making 
of  the  will.  Where  such  declarations  are  competent  as  direct 
proof  of  intention  in  the  will,  their  weight  depends  more 
mmediately  upon  then*  proximity  to  its  execution;  but  if 
competent  for  this  purpose,  they  are  competent,  whether 
made  before,  at,  or  after  the  act.94 

XI.   ADVANCEMENTS 

117.  The  General  Presumption. 

The  law  recognizes  the  natural  affection  which  prompts 
the  parent  (and  in  some  degree  any  one  standing  in  loco 
parentis)  to  make  voluntary  provision  for  children 95  by 


94  This  is  now  regarded  as  the 
better  rule.  Doe  v.  Allen,  12  Ad. 
&  El.  451;  though  there  are  many 
conflicting  cases. 

Declarations  of  the  testatrix 
at  the  time  of  executing  a  codicil, 
that  she  did  not  intend  to  revoke 
the  original  will,  are  not  admis- 
sible in  a  suit  to  set  aside  the  pro- 
bate of  the  will  based  upon  the  re- 
vocation of  the  codicil.  Osburn  v. 
Rochester  Trust,  etc.,  Co.,  152 
N.  Y.  App.  Div.  235,  136  N.  Y. 
Supp.  859. 

Declarations  made  by  a  testa- 
tor near  enough  to  the  time  of  the 
execution  of  the  will  to  be  regarded 
as  part  of  the  res  gestce  of  its  exe- 
cution are  admissible  in  evidence 
to  show  his  state  of  mind  and  his 
intention  in  the  disposal  of  his 
property.  Lane  v.  Moore,  151 
Mass.  87,  23  N.  E.  Rep.  828,  21 
Am.  St.  Rep.  430;  Throckmorton  v. 
Holt,  180  U.  S.  553,  45  L.  Ed.  663, 
21  Sup.  Ct.  Rep.  474. 


The  declarations  of  a  testator 
made  subsequent  to  the  execution 
are  not  admissible  to  prove  fraud 
and  collusion.  Smith  v.  Keller, 
205  N.  Y.  39,  98  N.  E.  Rep.  214, 
rev'g  145  N.  Y.  App.  Div.  908,  129 
N.  Y.  S.  1146. 

Declarations  made  after  the 
execution  of  the  will  are  incom- 
petent. In  re  McVeigh,  181  Mo. 
App.  566,  164  S.  W.  Rep.  673. 

Declarations  of  the  testator  dur- 
ing his  lifetime  as  to  the  contents 
of  his  will  are  not  admissible  to 
prove  its  execution.  Matter  of 
Corcoran,  145  N.  Y.  App.  Div.  129, 
129  N.  Y.  Supp.  165. 

The  intent  of  the  testator  ex- 
pressed in  his  will  cannot  be 
changed  by  his  parol  declarations 
dehors  the  will.  Williams  v.  Free- 
man, 83  N.  Y.  561. 

95  In  many  cases  the  language  of 
the  court  extends  the  rule  no  farther 
than  to  provisions  for  minors,  see 
Jackson  v.  Matsdorf,  11  Johns.  91; 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


445 


anticipating  'n  favor  of  one  or  another,  the  distribution  of 
the  patrimonial  estate  before  death,  and  which  at  the  same 
tune  intends  that  the  ultimate  division  shall  equalize  the 
shares  of  all.96  Hence  it  is  a  legal  though  not  a  conclusive 
presumption,  applicable  hi  case  of  total  intestacy,  or,  to 
speak  more  closely,  wherever  (will  or  no  will)  the  division  of 
the  entire  estate  is  subjected  to  the  statutes  of  descent  and 
distributions,97  that  a  substantial  provision,  beyond  ex- 
penditures for  maintenance  or  education,98  and  not  char- 
acterized as  a  mere  gift  nor  as  creating  a  debt  on  the  part 
of  the  child,99  was  intended  as  an  earnest  of  the  inheritance, 
and  to  be  deducted  from  the  recipient's  share  of  the  estate  on 
the  parent's  death.  The  court  looks  to  the  substantial  char- 
acter of  the  provision.1  But  in  all  cases  the  question  is  one 


but  minority  is  not  essential  to  the 
presumption,  and  indeed,  where 
the  expenditure  is  for  mainten- 
ance during  minority,  may  indi- 
cate that  it  was  made  in  discharge 
of  parental  duty.  See  Vail  v. 
Vail,  10  Barb.  69. 

"An  advancement  is  a  gift  in 
prsesenti  of  money  or  property  to 
a  child  by  a  parent  to  enable  the 
donee  to  anticipate  his  inheritance 
pro  tanto  and  applies  to  cases  of 
intestacy."  Ellard  v.  Ferris,  91 
Ohio  St.  339,  110  N.  E.  Rep.  476, 
L.  R.  A.  1916,  C.  613. 

96  Parks  v.  Parks,  19  Md.  323. 

97  Camp  v.  Camp,  2  Redf .  SUIT. 
141. 

The  doctrine  of  advancement 
applies  only  in  a  case  of  intestacy. 
Gilmore  v.  Jenkins,  129  Iowa,  686, 
106  N.  W.  Rep.  193,  6  Ann.  Gas. 
1008;  In  re  Hall,  132  Iowa,  664, 
110  N.  W.  Rep.  148. 

«  1  N.  Y.  R.  S.  754,  §  23,  4  Kent 
Com.  417.  In  States  where  the 


statute  does  not  exclude  it,  ex- 
trinsic evidence  that  such  expendi- 
tures were  intended  as  advance- 
ments, is  proper.  Riddle's  Estate, 
19  Penn.  St.  431. 

99  Law  v.  Smith,  2  R.  I.  244. 

xThus,  where  the  father  con- 
veys the  fee  to  his  son,  who  re- 
conveys  for  life,  the  advancement 
amounts  only  to  the  value  of  the 
remainder.  Comings  v.  Wellman, 
14  N.  H.  287.  But  where  the  con- 
sideration of  a  deed  was  pecuniary, 
except  as  to  a  specified  fraction, 
which  was  the  grantee's  "heredi- 
tary portion  from"  the  grantor, 
Held — that  as  to  the  amount  of  that 
portion,  it  was  an  advancement. 
Miller's  Appeal,  31  Penn.  St.  337. 
So  a  conveyance  for  life,  with 
remainder  to  the  grantee's  chil- 
dren, is  presumptively  an  advance- 
ment only  to  the  value  of  the  life- 
estate.  Cawthorn  v.  Coppedge,  1 
Swan,  487. 

"Where  a  legacjr  is  given  by  the 


44(5 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


of  intent,2  the  main  element  being  the  intent  of  the  donor; 
and  very  slight  evidence  suffices  to  sustain  the  inference  that 
the  donee  accepted  the  transfer  upon  the  understanding, 
express  or  implied,  that  it  should  serve  on  the  death  of  the 
donor,  in  lieu  of  so  much  of  any  share  to  come  from  his  estate 
to  the  donee.3  The  intent  shown  once  to  have  existed  is 
presumed  to  have  continued; 4  and  neither  a  transaction  by 
which  a  legal  debt  has  been  constituted,5  nor  a  benefit  once 
conferred  and  accepted  as  a  gift,6  can  be  converted  into  an 


testator  to  a  child,  or  to  one  to 
whom  he  stands  in  loco  parentis,  a 
subsequent  payment  made  to  the 
child  raises  the  presumption  of  an 
intention  on  the  part  of  the  testa- 
tor to  adeem  the  legacy  in  whole 
or  in  part.  In  case  of  a  legacy  to 
a  person  other  than  the  child  of  the 
testator  or  to  one  to  whom  he  does 
not  stand  in  loco  parentis,  a  sub- 
sequent gift  to  the  legatee  raises  no 
presumption  of  an  intention  of  the 
testator  to  satisfy  the  legacy  un- 
less the  gift  is  for  the  same  specific 
purpose  for  which  the  legacy  was 
designed  or  is  in  terms  made  a  sub- 
stitute therefor."  Ellard  v.  Ferris, 
91  Ohio  St.  339,  110  N.  E.  Rep. 
476,  L.  R.  A.  1916,  C.  613. 

2  Weaver's  Appeal,  63  Penn.  St. 
309,  and  other  cases  cited  above  and 
below. 

When  it  is  disclosed  that  the 
heir  received  from  the  ancestor 
money  or  property  during  the 
lifetime  of  the  ancestor,  there  is 
a  presumption  that  the  same  was  an 
advancement.  Boyer  v.  Boyer, 
111  N.  E.  Rep.  (Ind.)  952. 

3  See  the  contractual  nature  of 
advancements    well    explained    in 
Bing.  on  Desc.  347. 


Where  the  testator  during  his 
lifetime  loans  money  to  his  niece 
and  takes  a  promissory  note,  and 
subsequently  makes  his  will  con- 
taining a  clause  which  states  that 
whatever  moneys  his  children  have 
received  are  declared  to  be  abso- 
lute gifts  and  in  no  sense  advance- 
ments, the  niece's  note  will  not 
thereby  be  extinguished.  Mat- 
ter of  Cramer,  43  N.  Y.  Misc.  494, 
89  N.  Y.  Supp.  469. 

*  Oiler  v.  Bonebrake,  65  Penn. 
St.  338. 

5Yundt's  Appeal,  13  Penn.  St. 
575. 

While  parol  testimony  may  be 
introduced  in  reference  to  the  in- 
tent of  the  testator  in  cases  of  ad- 
vancements, the  plaintiff  will  not 
be  permitted  to  introduce  evidence 
that  he  never  received  anything 
from  the  testator,  where  the  will 
states  that  the  plaintiff  shall  ac- 
count for  $500  before  he  receives 
his  legacy.  Dodson  v.  Fulk,  147 
N.  C.  530,  61  S.  E.  Rep.  383. 

8  Sherwood  v.  Smith,  23  Conn. 
516. 

An  advancement  must  be  given 
its  character  at  the  time  the  trans- 
fer is  made.  There  must  be  evi- 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES  447 

advancement,  by  the  act  of  the  decedent,  uncommunicated 
to  the  debtor  or  donee.  The  subject  is  usually  regulated 
by  statute,  which  should  be  carefully  consulted;  for  a  statute 
defining  what  shall  be  deemed  to  be  or  prove  an  advance- 
ment, may  be  construed  to  exclude  other  evidence  hi  sub- 
stitution for,7  or  in  rebuttal  of,  the  statutory  evidence.8 
But  if  the  statutory  evidence  is  adduced,  it  is  the  better 
opinion  that  parol  evidence  hi  aid  of  its  validity  and  inter- 
pretation is  admissible  upon  the  familiar  principles  generally 
applicable  to  statutory  evidence.9  To  determine  a  question 
of  advancement,  attention  should  first  be  given  to  the  stat- 
ute definition;  then,  if  the  statute  does  not  preclude  such 
other  tests,  resort  should  next  be  had  to  the  will,  if  any,  to 
ascertain  the  testator's  intent;  next,  to  the  terms  of  the  gift 
or  grant  itself,  if  in  writing,  or  to  the  written  entries  made  in 
his  accounts,  etc.,  by  the  testator  or  the  written  evidence 
taken  from  the  donee;  next,  to  the  res  gestce  at  the  time  of  the 
transfer,  and,  on  the  failure  of  these  tests,  or  in  aid  of  them, 
to  the  declarations  of  the  decedent  and  the  admissions  of  the 

dence  that  it  was  intended  to  be  ment  shall  be  deemed  a  satisfac- 
an  advancement  at  the  time  of  tion  of  a  legacy  where  it  appears 
delivery.  A  testator  cannot  charac-  from  parol  evidence  that  the  testa- 
terize  certain  gifts  as  advance-  tor  intended  it;  and  this  is  so 
ments,  when  they  were  not  desig-  whether  the  legatee  was  or  was 
nated  such  at  the  time  they  were  not  a  child  of  the  testator.  Nail 
made.  Ludington  v.  Patton,  121  v.  Wright,  26  Ky.  Law,  Rep.  253, 
Wis.  649,  99  N.  W.  Rep.  614.  80  S.  W.  Rep.  1120. 
7  Barton  v.  Rice,  22  Pick.  508.  8  s.  P.,  as  to  revocation  of  will, 
Where  an  advancement  is  made  paragraph  72,  above, 
with  the  idea  that  it  is  to  be  de-  A  parent  cannot  by  a  mere  dec- 
ducted  in  the  event  of  the  testa-  laration  of  his  intention,  verbal 
trix,  dying  intestate,  and  the  tes-  or  in  writing,  either  make  that  an 
tatrix  subsequently  makes  her  will,  advancement  which  is  not  such 
it  shows  an  intention  on  her  part  by  law  or  exempt  one  of  his  chil- 
to  cancel  any  obligation  arising  dren  from  liability  to  account  for 
from  the  advancement.  Bowron  money  or  property  he  has  given  to 
v.  Kent,  190  N.  Y.  422,  83  N.  E.  him  with  which  the  statute  makes 
Rep.  472.  him  chargeable.  McCray  v.  Corn, 

According  to  the  Kentucky  stat-  168  Ky.  457, 182  S.  W.  Rep.  640. 

ute  (§  4840,  L.  1903)  an  advance-  9  See  Bing.  on  Desc.  397. 


448 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


beneficiary;  and  lastly,  to  the  character  of  the  thing  given, 
and  the  situation  of  the  parties  and  their  surrounding  cir- 
cumstances, from  which  a  presumption  may  arise  as  to 
whether  it  was  a  gift,  an  advancement,  or  a  loan.10 

118.  Advancement  by  Deed  of  Real  Property. 

If  the  language  of  a  sealed  instrument  will  without  violence 
bear  either  construction,  equity  will  receive  parol  evidence 
to  show  the  actual  intent,11  unless  the  statute  12  prevents. 
A  deed  from  parent  to  child,  expressed  to  be  in  consideration 
of  "love  and  affection,"  13  or  "good-will,"  14  or  the  like,15 
raises  a  presumption  of  advancement; 16  and  the  fact  that  a 
nominal  pecuniary  consideration  is  also  expressed,  does  not 
alone  rebut  the  presumption,17  but  is  enough  to  let  hi  parol 
evidence  to  rebut  it,18  and  parol  evidence  in  support  of  the 


10  Such,  for  instance,  as  the 
amount  as  compared  with  the  es- 
tate of  the  parent  and  the  number 
of  the  children,  and  the  purpose  for 
which  the  advance  was  made.  It 
is  always  a  natural  and  reason- 
able presumption  that  a  parent 
means  to  treat  his  children  equally. 
If  his  estate  is  large,  a  compara- 
tively small  sum  raises  the  pre- 
sumption of  a  gift  or  present.  So, 
if  it  be  shown  that  the  purpose  was 
education,  it  will  be  presumed  to 
have  been  in  discharge  of  the 
parental  duty,  until  rebutted  by 
other  evidence.  Weaver's  Appeal, 
63  Penn.  St.  309. 

"Phillips  v.  Chappell,  16  Geo. 
16.  As  the  question  is  not  be- 
tween the  parties  to  the  original 
instrument,  the  general  rule  ex- 
cluding parol  is,  perhaps,  not 
strictly  applicable.  See  Parks  v. 
Parks,  19  Md.  322,  and  ch.  I,  para- 
graph 16,  of  this  vol. 


12  As  in  Vermont,  Adams  v. 
Adams,  22  Vt.  50,  64. 

11  Hatch  v.  Straight,  3  Conn.  31. 

14  Sayles  v.  Baker,  5  R.  I.  457. 

"Miller's  Appeal,  31  Penn.  St. 
337. 

"Finch  v.  Garrett,  102  Iowa, 
381,  71  N.  W.  Rep.  429.  For  the 
court  presumes  equal  affection 
for  the  others.  Parks  v.  Parks,  19 
Md.  323.  Proof  that  the  son  had 
rendered  services  under  a  contract, 
without  anything  to  show  that  he 
had  not  received  the  contract 
compensation,  will  not  disprove  the 
intent  of  an  advancement.  And 
on  the  other  hand,  the  statement  in 
the  deed,  that  the  conveyance  was 
partly  in  consideration  of  a  con- 
tract for  services  or  support,  may 
be  explained  by  parol  testimony. 
Kingsbury's  Appeal,  44  Penn.  St. 
460. 

17  Hatch  v.  Straight   (above) . 

18  Scott  v.  Scott,  1  Mass.  527. 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


449 


presumption  is  then  equally  admissible.19  If  the  deed  ex- 
presses only  a  valuable  consideration  and  acknowledges  its 
payment,  this  by  itself  is  presumed  not  to  be  an  advance- 
ment,20 but  parol  evidence  is  admissible  to  show  that  no 
such  consideration  was  asked  or  received,21  and  such  ev- 
idence raises  the  presumption  that  the  gift  was  an  advance- 
ment.22 

119.  Purchase  in  Name  of  Child. 

Extrinsic  evidence  is  competent  to  show  that  the  decedent 
procured  securities  23  or  a  conveyance  to  be  made,  by  a  third 
person,  to  a  child  who  claims  to  share  in  his  estate,  under 
the  statute,24  and  that  the  decedent 25  paid  the  consideration, 
even  though  the  deed  recites  payment  by  the  grantee;26  and 


19  Kingsbury's  Appeal,  44  Penn. 
St.  460. 

20  Newell  v.  Newell,  13  Vt.  24. 

When  a  deed  recites  the  con- 
sideration and  it  is  sought  to  charge 
the  property  conveyed  as  an  ad- 
vancement, the  burden  of  proof 
is  on  the  person  asking  that  it  be 
charged  as  an  advancement  to 
show  that  it  was,  in  fact,  an  ad- 
vancement and  not  made  for  a 
valuable  consideration.  McCray 
v.  Corn,  168  Ky.  457,  182  S.  W. 
Rep.  640. 

21Speer  v.  Speer,  14  N.  J.  Ch. 
(1  McCarter),  240;  Meeker  v. 
Meeker,  16  Conn.  383;  Finch  v. 
Garrett,  102  Iowa,  381,  71  N.  W. 
Rep.  429. 

"Sanford  v.  Sanford,  5  Lans. 
486,  s.  c.,  61  Barb.  293. 

23  2  Story's  Eq.  J.,  §  1204. 

24  See  paragraph  117. 

25  Whether  the  father.    Proseus 
v.   Mclntyre,    5   Barb.    424,   432; 
Taylor   v.    Taylor,    4   Gilm.    303; 
Mumma  v.  Mumma,  2  Vern.  19; 


or  the  mother.  Murphy  v.  Na- 
thans, 46  Penn.  St.  508.  As  to 
grandparent,  see  Shiver  v.  Brock, 
2  Jones  L.  (N.  C.)  137. 

Where  the  purchase  price  of  land 
is  paid  by  a  father  or  a  husband 
and  the  title  taken  in  the  name  of 
the  child  or  of  the  wife,  the  prima 
facie  presumption  is,  nought  else 
appearing,  that  such  land  was  in- 
tended as  a  gift  or  as  an  advance- 
ment. Hunnell  v.  Zinn,  184  S.  W. 
Rep.  (Mo.)  1154. 

Where  the  purchase  money  is 
paid  by  a  parent  and  a  deed  is 
made  to  a  child,  there  is  a  pre- 
sumption that  it  was  intended  as  an 
advancement,  but  this  is  a  pre- 
sumption that  may  be  rebutted. 
Clary  v.  Spain,  119  Va.  58,  89  S.  E. 
Rep.  130. 

26  Dudleys.  Bosworth,  10  Humph. 
(Tenn.)  9.  So  also  where  the  child 
pays  the  consideration  out  of  the 
parent's  funds.  Douglas  v.  Brice, 
4  Rich.  Eq.  322. 


450  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

these  facts  shown,  without  more,  raise  a  legal  presumption 
that  the  purchase  was  an  advancement.27  Extrinsic  evidence 
is  admissible  in  this  as  in  other  classes  of  prima  facie  advance- 
ments, to  rebut  or  support  the  presumption  of  intent  to 
make  an  advancement.28  Each  case  has  to  be  determined  by 
the  reasonable  presumption  arising  from  the  facts  and  circum- 
stances connected  with  it.  Lapse  of  time,  connected  with  con- 
tinued acts  of  recognition  of  the  right  of  the  donee,  are  always 
potent,  and  frequently  controlling  circumstances  in  deter- 
mining the  intention.29  If  it  be  shown  that  the  object  of 
the  parent  or  husband  was  to  defraud  his  existing  or  future 
creditors,  they  may  avoid  it; 30  but  the  fact  that  the  grantor 
adopted  that  form  of  conveyance  in  the  fear  of  creditors,  is 
not  alone  enough  to  preclude  giving  it  effect  as  between  the 
heirs,  etc.,  as  an  advancement.31 

120.  Other  Transfers. 

Unless  the  statutes  of  the  State  32  impose  a  different  rule, 
both  the  fact  and  the  character  of  an  advancement,  even  of 
real  property,  may  be  established  by  parol,33  and  no  par- 

27  Same   cases.  constitute  an  advancement.    Stock 

28  Jackson   ex   dem.    Benson   v.  v.  McAvoy,  L.  R.  15  Eq.  55,  s.  c., 
Matsdorf,   11  Johns.  91;,Proseus  5    Moak's    Eng.    711;     and    see 
v.  Mclntyre,  5  Barb.  424;  Creed  Dudley  v.  Bosworth,   10  Humph. 
v.  Lancaster  Bank,  1  Ohio  St.  1.  (Tenn.)  9. 

»  Creed  v.   Lancaster  Bank,    1  ""Bay    v.    Cook,    31    111.    336; 

Ohio  St.    1.     The  fact  that  the  Guthrie  v.  Gardner,  19  Wend.  414; 

parent  took  and  retained  possession  Creed  v.  Lancaster  Bank  (above) ; 

until  his  death,  was  held,  in  early  compare   Kingsbury's   Appeal,   44 

cases,  not  to  rebut  the  presumption  Perm.  St.  460. 

of  advancement.     Taylor  v.  Tay-  31  Kingsbury's  Appeal,  44  Penn. 

lor,  1  Atk.  386;  Dyer  v.  Dyer,  2  St.  460;  Proseus  v.   Mclntyre,   5 

Cox  Eq.  92;  especially  if  the  child  Barb.  424,  434. 

were  a  minor.    Mumma  v.  Mumma,  32  As  in  Barton  v.  Rice,  22  Pick. 

2  Vern.  19.    Recently  it  has  been  508,  and  Porter  v.  Porter,  51  Me. 

held  that  taking  and  keeping  the  376. 

beneficial  possession  may  rebut  the  33  Parker  v.  McCluer,  3  Abb.  Ct. 

presumption,   and   will   sustain   a  App.  Dec.  454;  Dugan  v.  Gettings, 

finding  of  a  trust,  notwithstanding  3  Gill,  138. 
a  parol  declaration   of  intent   to 


NEXT  OF   KIN,   DEVISEES   AND    LEGATEES  451 

ticular  form  of  words  is  required.34  A  sum  of  money  given 
to  enable  the  son  to  purchase  a  farm  or  the  like,  the  amount 
being  large  and,  perhaps  equivalent  to  the  apparent  expect- 
ancy of  the  son,  is  presumptively  an  advancement  if  no 
security  or  promise  is  taken  by  the  parent; 35  and  if  securities 
for  repayment  are  taken  by  a  parent  on  furnishing  funds 
to  the  child,  the  subsequent  surrender  of  them,  or  a  part  of 
them,  may  raise  a  presumption  of  advancement  to  that  ex- 
tent.36 On  the  other  hand,  while  a  note  given  by  a  child  to 
the  parent  is  presumed  to  be  not  an  advancement,  but  a 
debt,  yet  parol  evidence  is  admissible  to  show  that  it  was 
given  as  an  admission  of  an  advancement.37  The  mere  deliv- 
ery of  money  or  chattels  is  not  presumptively  an  advance- 
ment, but  rather,  hi  the  absence  of  evidence  tending  to  show 
it  was  intended  as  an  advancement,  is  presumed  to  have 
been  either  a  gift  or  loan; 38  or,  if  the  parent  was  indebted  to 
the  child,  it  will  be  presumed  to  have  been  intended  as  pay- 
ment.39 

121.  Entries  in  Account. 

An  account  kept  by  the  donor,  in  which  he  charges  the 
sum  hi  a  manner  indicating  his  intent  that  it  is  to  take  effect 

"  Bulkeley  v.  Noble,  2  Pick.  337;  v.  Noble,  138  Mo.  25, 39  S.  W.  Rep. 

Bing.    on    Desc.    388;    Brown    v.  458. 
Brown,  16  Vt.  197.  S8  Bing.  on  Desc.  394,  etc.    The 

35  Weaver's  Appeal,  63  Penn.  St.  fact  that  the  conveyance  was  of 

309.  real   property   enhances   the   pre- 

36Hanner  v.  Winburn,   7  Ired.  sumption,  because  it  is  more  sug- 

Eq.  142.    But  a  mere  declaration  gestive  of  the  purpose  of  perma- 

uncommunicated     may     not     be  nent  settlement.     Parks  v.  Parks, 

enough.    See  Bing  on  Desc.  392.  19  Md.  323.    On  the  other  hand, 

37  Tillotson  #.  Race,  22  N.  Y.  127;  it  would   take   stronger   evidence 

Brook  v.  Latimer,  44  Kans.  431,  to  show  that  the  gift  of  a  saddle 

21  Am.  St.  Rep.  292,  24  Pac.  Rep.  horse  was  an  advancement,  than 

946.    Where  the  relation  of  parent  that  of  a  stallion  kept  for  purpose 

and   child   exists,   the   burden   of  of  profit.     Ison  v.  Ison,  5  Rich, 

proof  is  on  the  plaintiff  to  prove  Eq.  15. 

undue  influence  in  the  making  of  a          39  Hagler  v.  McCombs,  66  N.  C. 

voluntary    conveyance.      Doherty  345. 


452  ACTIONS   BY   AND   AGAINST   HEIRS   AND 

as  an  advancement,  may  be  sufficient  without  evidence  that 
the  donee  knew  of  the  charge.40  But  where  this  is  the  only 
evidence  of  intent,  it  is  the  better  opinion  that  the  quality 
of  advancement,  that  is  to  say,  the  liability  of  the  donee 
to  have  the  gift  deducted  from  his  share  of  the  estate,  may 
be  released  by  a  cancellation  or  corresponding  credit  evincing 
a  discharge,  although  not  communicated  to  the  donee,41  as 
well  as  by  conduct  of  the  parties  treating  it  as  such.  If  the 
entry  or  other  memorandum  be  made  in  a  form  indicating  a 
gift,  or  a  loan,  or  bailment,42  parol  evidence  is  admissible  to 
explain  that  it  was  intended  as  an  advancement. 

122.  Declarations  and  Admissions  as  to  Advancements. 

Whether  the  advancement  was  by  a  conveyance  made  by 
the  donor,43  or  made  by  a  third  person  on  a  consideration 
moving  from  the  donor,44  or  by  transfers  in  pais,  and  by 
charges  in  account  or  other  writings,  or  by  parol,45  the  dec- 
larations of  the  donor  made  at  the  time  are  admissible  as 
part  of  the  res  gestce,46  although  not  competent  evidence  as 

40  As  to  what  form  of  charge  has  41  Compare  Johnson  v.  Belden, 

this  effect,  see  Lawrence  v.  Lind-  20  Conn.  322;  Oiler  v.  Bonebrake, 

say,68N.Y.  108,  rev'g  7  Hun,  641;  65  Perm.  St.  338. 

Bigelow   v.   Pool,    10   Gray,    104,  42  Law  v.  Smith,  2  R.  I.  244. 

Bing.    on    Desc.    382,    and    cases  43  Christy's   Appeal,    1    Grant's 

cited.    His  credit  of  interest  held  Cas.  369;  Parks  v.  Parks,  19  Md. 

competent  evidence  that  it  was  a  323;  Speer  v.  Speer,  14  N.  J.  Eq. 

loan.    Peck  v.  Peck,  21  L.  T.  N.  S.  (1  McCarter)  240,  248. 

670.  44  Compare  Sayles  v.  Baker,   5 

Where  the  testator  in  his  life-  R.  I.  457. 

time   paid   to   his    children   of   a  4S  Oiler  v.  Bonebrake,  65  Penn. 

former  marriage  a  substantial  sum  St.  338. 

of  money  in  full  settlement  and  46  Woolery  v.  Woolery,  29  Ind. 

extinguishment  of  all  their  rights  254;    Wilson    v.    Beau  champ,    50 

as  heirs  to  his  estate,  and  took  Miss.  24;  Fellows  0.  Little,  46  N.  H. 

their  receipts  to  that  effect,  they  37,  38;  Bragg  v.  Massie,  38  Ala.  89, 

are   estopped   from   ever   making  106.    And  very  freely  if  fraud  or 

any   claim   to  his   estate.     Calli-  undue    influence    appears.      Cook 

cott  0.  Callicott  43  So.  Rep.  616  v.  Carr,  20  Md.  403. 
(Miss.). 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  453 

to  intent  if  the  statute  requires  written  evidence.47  Subject 
to  the  same  statutory  qualification,  the  declarations  of  the 
donor,  made  before  the  transaction,  are  competent  on  the 
question  of  his  intent.48  Whether  his  declarations  made 
after  the  transaction  are  competent,  depends  on  how  they 
are  invoked  in  evidence.49  For  the  purpose  of  showing  that 
the  transaction  was  a  gift,  the  donor's  declarations  are  com- 
petent against  the  representatives,  heirs,  and  next  of  kin, 
claiming  it  to  be  an  advancement;  ^  and  for  the  purpose  of 
showing  either  that  it  was  a  gift  or  advancement,  they  are 
competent  against  those  claiming  it  to  have  constituted  a 
debt;  for  in  either  case  they  are  his  admissions  against  in- 
terest, and  bind  those  claiming  under  him  and  in  his  right. 
But  for  the  purpose  of  showing  either  that  the  transaction 
was  an  advancement,  or  that  it  was  a  debt,  his  declarations, 
made  after  he  had  parted  with  all  power  of  revocation,  are 
not  competent  against  those  who  claim  it  as  a  gift; 51  and 
for  the  purpose  of  showing  that  it  was  a  debt,  they  are  not 
competent  against  those  who  claim  it  either  as  a  gift  or  as 
an  advancement;  for  hi  either  case,  they  are  the  declarations 

47  Weatherhead  v.  Field,  26  Vt.  Mo.  460,  2  S.  W.  Rep.  413;  Mc- 
665;  Bulkeley  ».   Noble,  2  Pick.  Dearman  v.  Hodnett,  83  Va.  281, 
337.  2  S.  E.  Rep.  643. 

48  Powell  v.  Olds,  9  Ala.  861.  M  Phillips  v.  Chappell,  16  Geo. 

49  The  cases  may  not  explain  the  16;  Johnson  v.  Belden,  20  Conn, 
distinction    here    stated,   but   the  322;  Note  in  13  Moak's  Eng.  700. 
distinction  explains  the  cases.  Contra,  Bing.  on  Desc.  404. 

Where  a  parent  takes  a  promis-          51  Sanford  v.   Sanford,   5   Lans. 

sory  note  from  his  child  his  declar-  486,  s.  c.,  61  Barb.  293;  Hatch  v. 

ations  at  the  time  of  the  trans-  Straight,    3    Conn.    31.      Contra, 

action,  or  subsequent  thereto,  are  Rollins    v.    Strout,    4    Nev.    150. 

admissible    for    the    purpose    of  Compare  Law  v.  Smith,  2  R.  I. 

showing  that  the  note  was  taken  244;  Peck  v.  Peck,  21  L.  T.  N.  S. 

as  a  mere  receipt  or  memorandum  670.    A  debt  barred  by  the  stat- 

of    an    advancement.      Brook    v.  ute  of  limitations  cannot,  by  the 

Latimer,  44  Kan.  431,  24  Pac.  Rep.  decedent's  declarations  alone,   be 

946,  11  L.  R.  A.  805,  21  Am.  St.  converted   into   an   advancement. 

Rep.   292;   Peabody   v.   Peabody,  Bing.  on  Desc.  363. 
59  Ind.  556;  Nelson  v.  Nelson,  90 


454 


ACTIONS   BY   AND    AGAINST   HEIRS   AND 


in  his  own  favor.  The  fact  that  such  declarations  were 
communicated  to  the  donee,  may,  of  course,  render  them 
competent; 52  and  they  may  also  be  admissible  on  principles 
previously  explained,53  when  necessary  and  proper  to  show 
his  intent  in  a  subsequent  will  referring  to  the  advance- 
ments.64 The  donee's  declarations  or  admissions,  made  as 
part  of  the  res  gestce,  or  at  any  subsequent  time,  are  com- 
petent against  him  and  those  claiming  under  him.55 

123.  Value. 

The  burden  of  proving  value  is  on  those  who  claim  that 
the  provision  should  be  deducted  as  an  advancement; 56  but 
evidence  that  the  advancement  was  accepted  in  full  of  the 
donee's  share  throws  on  the  donee  the  burden  of  proving 
that  the  value  was  less  than  his  share.57  The  value  may  be 


52  Yundt's  Appeal,  13  Penn.  St. 
575. 

63  Paragraphs  111  (above)  and 
124  (below). 

"Tillotson  v.  Race,  22  N.  Y. 
126.  A  security  which  cannot, 
under  the  statute,  be  proved  to 
represent  an  advancement,  may  be 
made  such  by  a  provision  in  the 
will.  Bacon  v.  Gassett,  13  Allen, 
337.  Whether  the  decedent's  trans- 
actions with  the  other  heirs  ap- 
parent are  relevant  on  the  question 
of  his  intention  in  the  transaction 
with  one  claiming  a  gift,  compare 
Bulkeley  v.  Noble,  2  Pick.  337; 
Weaver's  Appeal,  63  Penn.  St. 
309. 

"Christy's  Appeal,  1  Grant's 
Cas.  369;  Speer  v.  Speer,  14  N.  J. 
Eq.  (1  McCarter)  240,  248;  Law 
v.  Smith,  2  R.  I.  244.  Debts  by 
the  husband  of  the  decedent's 
daughter  cannot  be  changed  into 
advancements  as  against  her, 


merely  by  her  admission  that  "this 
we  owe  to  father  honestly." 
Yundt's  Appeal,  13  Penn.  St.  575. 
A  judgment  or  decree,  in  a  suit 
for  settlement  of  the  estate,  fixing 
the  character  and  amount  of  ad- 
vancements, is  conclusive  in  a 
subsequent  action  between  the 
same  parties,  or  those  in  privity 
with  them,  as  to  realty.  Torrey  v. 
Pond,  102  Mass.  355. 

56  See  Bell  v.  Champlain,  64 
Barb.  396. 

The  value  of.  the  use  and  occu- 
pation of  land  by  one  child  under 
no  contract  of  renting,  although 
holding  at  the  will  and  pleasure  of 
the  father,  must  be  accounted  for 
by  the  child  as  an  advancement  in 
the  settlement  and  distribution  of 
the  father's  estate.  McCray  v. 
Corn,  168  Ky.  457,  1825  S.  W. 
Rep.  640. 

«  Parker  v.  McCluer,  3  Abb.  Ct. 
App.  Dec.  454. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  455 

conclusively  fixed  by  an  acknowledgment  in  writing,58  or  it 
may  be  made  immaterial  by  a  conclusive  release  of  all  in- 
terest in  the  estate,  given  upon  receiving  the  advancement.59 
If  the  advancement  was  made  by  a  deed  expressing  a  pecu- 
niary consideration,  that  sum  may,  by  extrinsic  evidence,  be 
shown  to  be  the  value.60  If  the  donor  put  a  value  on  the 
advancement,  in  the  transaction  itself,  it  excludes  evidence 
of  greater  value,61  but  not  evidence  of  less  value.62  If,  how- 
ever, a  value  was  fixed  by  agreement  with  the  donee  (the 
acknowledgment  being  in  writing  if  the  statute  so  require), 
it  excludes  evidence  of  less  value.  Where  actual  value  is 
to  control,  value  at  the  time  of  the  transfer  is  to  be  proved, 
and  without  interest.63 

124.  Testamentary  Clauses  as  to  Advancements. 

Where  the  will  refers  to  money  bequeathed  as  being  al- 
ready in  possession  of  the  donee,  the  burden  is  upon  those 
alleging  satisfaction  to  show  that  the  possession  continued, 
at  least  if  the  beneficiary  is  one  who  might  be  presumed  to 
have  held  possession  as  the  testator's  agent.64  Where  the 
will  refers  to  entries  or  memoranda,  or  other  unattested 
papers  previously  made  or  subsequently  to  be  made,  to 
ascertain  the  advancements,  the  documents  so  identified 
are  competent  evidence,65  and  so,  also,  if  it  releases  securities 
taken  from  the  beneficiaries.66  If  the  entries  or  securities 

58 1  N.  Y.  R.  S.  754,  §  25.  J.  542;  and  see  Langdon  v.  Astor, 

69  Meeker  ».  Meeker,  16  Conn.  16  N.  Y.  9,  rev'g  3  Duer,  477. 

383.  Where  a  testator  keeps  a  book 

60  Meeker  v.  Meeker,  16  Conn.  of  advancements  made  to  his  chil- 
383.  dren,  and  refers  to  it  in  his  will, 

61  Meeker  v.  Meeker,  16  Conn.  parol  evidence  may  not  be  intro- 
383.  duced  to  prove  that  certain  ad- 

62  See  Marsh  v.  Gilbert,  2  Redf.  vancements  entered  therein  were 
Surr.  R.  465.  never  in   fact  made.     Younce  v. 

63  Bing.  on  Desc.  407,  408,  and  Flory,  77  Ohio  St.  71,  83  N.  E: 
cases  cited.  Rep.  305. 

64  Enders  v.  Enders,  3  Barb.  362.  «« See  Chase  v.  Ewing,  51  Barb. 

65  Whateley  v.  Spooner,  3  Kay  &  597;    Luqueer's    Estate,    1    Tuck. 


456 


ACTIONS   BY   AND   AGAINST   HETRS   AND 


thus  referred  to  do  not  bear  evidence  on  their  face  that  the 
sums  were  intended  as  advancements,  extrinsic  evidence  is 
competent 67  and  necessary,68  to  establish  the  donor's  intent 
to  make  them  such. 


XII.  TITLE,  AND  DECLARATIONS,  OF  ANCESTOR, 

HEIR,   ETC. 

125.  Ancestor's  Title,  and  Successor's  Election. 

At  common  law  the  heir  must  produce  evidence  that  the 
ancestor  was  actually  seized,69  that  is  to  say  had  legal  title, 
and  also  actual  possession  or  its  equivalent 70  thereunder. 
If  the  title  of  the  ancestor  was  acquired  by  " purchase" 
(including  devise),  proof  of  legal  title  raised  a  sufficient 
presumption  of  seizin  in  fact,71  but  if  by  descent  some  ev- 
idence of  seizin  in  fact  was  required.72  The  present  common- 
law  rule  generally  is  that  seizin  in  law  is  sufficient  to  establish 
dower,  but  that  seizin  in  fact  is  necessary  to  establish  cur- 
tesy.73  The  subject  is  now  generally  regulated  by  statutes 
denning  descendible  and  devisable  property  in  a  way  to 


236;  Tillotson  v.  Race,  22  N.  Y. 
122. 

67  Tillotson   v.   Race    (above). 

68  Lawrence  v.  Lindsay,  68  N.  Y. 
108,  rev'g  7  Hun,  641. 

69  Jackson  v.  Hendricks,  2  Johns. 
Gas.  214;  Whitney  v.  Whitney,  14 
Mass.   88.     In  an  action  by  an 
heir     to     recover     possession    of 
realty,  the  defendant  is  a  compe- 
tent   witness    in    his    own   favor, 
notwithstanding  the  death  of  the 
plaintiff's    ancestor,    under   whom 
both  parties  claim,  as  to  any  mat- 
ter except  such  as  transpired  be- 
tween   defendant    and    such    an- 
cestor.   Terry  v.  Rodahan,  79  Ga. 
278,  11  Am.  St.  Rep.  420,  5  S.  E. 
Rep.  38. 


70  Such  as  possession  by  a  tenant 
of  less  than  a  freehold.  Bushby 
v.  Dixon,  3  Barmv.  &  C.  305;  or 
possession  of  one  of  several  par- 
cels. Green  v.  Liter,  8  Cranch, 
245. 

It  is  ordinarily  required,  in 
order  to  prove  title  to  unoccupied 
lands,  that  the  claimants  trace 
back  their  title  to  the  sovereign 
power.  Wiechers  v.  McCormick, 
122  N.  Y.  App.  Div.  860, 107  N.  Y. 
Supp.  835;  Greenleaf  v.  Brooklyn, 
etc.,  Ry.  Co.,  141  N.  Y.  395  36, 
N.  E.  Rep.  393. 

7'  Wendell  v.  Crandall,  1  N.  Y. 
491. 

72  Id. 

73 1  Bish.  Man.  W.,  §  496. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES  457 

dispense  with  the  necessity  of  actual  seizin; 74  and  possession 
in  the  ancestor  is  not  now  usually  an  essential  part  of  the 
evidence  to  prove  mere  title  by  descent,  except  in  those 
cases  where  possession  under  claim  of  title  is  relied  on  as 
constituting  the  right  or  the  evidence  of  it.  No  evidence  of 
acceptance  by  the  heir,  of  title  to  lands  descended,  is  nec- 
essary. The  law  casts  it  upon  him  without  his  consent.75  A 
title  by  deed  or  devise,  requires  the  assent  of  the  successor  in 
interest,  express  or  implied,  to  effect  the  transfer.76  But  the 
law  presumes  -the  acceptance  of  a  beneficial  devise,  and  it  is 
doubted  whether  a  parol  disclaimer  is  binding.77  Where  the 
right  of  one  entitled  by  succession  depends  upon  an  election, 
and  no  express  election  is  shown,  nor  any  positive  act  or 
declaration  manifesting  such  election,  an  election  may  be 
presumed  from  the  circumstances  of  benefit  and  silence.78 
Under  the  statute  declaring  the  widow  to  be  deemed  to  have 
accepted  a  provision  in  lieu  of  dower,  unless  she  proceeds 
for  dower  within  a  year  after  the  husband's  death,  it  is  not 
necessary  that  the  devisees  and  grantees  should  prove  that 
she  had  notice  of  the  will.79 

126.  Declarations  and  Admissions  of  the  Ancestor  as  to 

Title,  etc. 

Declarations  made  while  in  possession  of  real  estate,  by  an 
ancestor,  since  deceased,  indicating  the  source  of  his  title, 

74 1  N.  Y.  R.  S.  751,  §§  1,  27  (6th  If  one  die  intestate,  seized  in 

ed.  vol.  2,  p.  1136);  2  Id.  57,  §2  fact  of  land,  that  seizin  in  fact  is 

(6th  ed.  vol.  3,  p.  57).  cast  by  descent  upon  his  heir,  and 

A   daughter   who   inherits   land  the  heir  has  seizin  in  fact  without 

from  her  intestate  father  need  not  entry.    Bragg  v.  Wiseman,  55  W. 

enter  to  become  seized,  and  if  she  Va.  330,  47  S.  E.  Rep.  90. 

dies  before  her  mother,  the  land  763  Washb.  R.  P.  4th  ed.  6  (4). 

and  seizin  pass  to  the  heirs  of  her  "  Id.  542,  citing  Tole  v.  Hardy,  6 

mother.      Weeks    v.    Quinn,    135  Cow.  340,  2  Pet.  655. 

N.  C.  425, 47  S.  E.  Rep.  596.  78  Merrill  ».  Emery,  10  Pick.  507, 

7*  3  Washb.  R.  P.  4th  ed.  6  (4);  SHAW,  Ch.  J. 

and  see  Mumford  v.  Bowman,  26  79 1  N.  Y.  R.  S.  742,  §  14;  Palmer 

La.  Ann.  413.  v.  Voorhis,  35  Barb.  479. 


458 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


and  the  fact  that  the  one  under  whom  he  claimed  had  been 
in  possession,  may  be  proved  by  witnesses  who  heard  them, 
as  evidence  against  his  heirs  and  devisees.80  Thus,  admissions 
by  a  person,  that  the  conditions  upon  the  failure  of  which  his 


^Enders  v.  Sternbergh,  2  Abb. 
Ct.  App.  Dec.  31,  rev'g  52  Barb. 
222.  In  an  action  where  the  plain- 
tiffs '  title  is  as  heirs  of  their  father, 
a  letter  written  by  him  tending 
to  show  that  he  had  made  a  sale 
and  conveyance  of  the  property 
to  the  defendant  is  competent 
evidence  against  such  heirs.  Terry 
v.  Rodahan,  79  Ga.  278,  11  Am. 
St.  Rep.  420,  5  S.  E.  Rep.  38. 

Declarations  of  a  decedent 
holder  of  a  title  against  his  interest 
are  competent  evidence  against 
his  grantees  or  successors.  Delmoe 
z>vLong,  35  Mont.  139,  88  Pac. 
Rep.  778. 

Declarations  made  while  in  pos- 
session of  land,  against  his  inter- 
est, are  admissible  against  one 
claiming  under  him,  but  only  when 
they  are  declarations  against  in- 
terest in  regard  to  the  nature,  char- 
acter or  extent  of  the  declarant's 
possession,  the  identity  or  loca- 
tion upon  the  face  of  the  earth  of 
boundaries  and  monuments  called 
for  in  a  deed,  or  in  regard  to  any 
matter  concerning  the  physical 
condition  or  use  of  the  property, 
which  must  be,  from  the  nature  of 
things,  proved  by  parol.  Phillips 
v.  Laughlin,  99  Me.  26,  58  Atl. 
Rep.  64,  105  Am.  St.  Rep.  253,  2 
Ann.  Cas.  1. 

Declarations  by  the  holder  that 
she  had  made  a  deed  which  she  had 
executed  upon  a  meritorious  con- 


sideration and  substantially  that 
she  had  executed  it  freely  and 
voluntarily  are  in  disparagement 
of  her  apparent  title,  and  when 
made  long  prior  to  the  beginning 
of  any  controversy — ante  litem 
motem — are  admissible.  Smith  v. 
Moore,  142  N.  C.  277,  55  S.  E. 
Rep.  275,  7  L.  R.  A.  N.  S. 
684. 

The  declarations  of  a  grantor 
made  after  he  has  parted  with  his 
title  are  not  admissible  in  evidence 
to  impeach  the  title  of  any  one 
claiming  under  him.  Jonas  v. 
Hirshburg,  40  Ind.  App.  88,  79 
N.  E.  Rep.  1058;  Higgins  v.  Spahr, 
145  Ind.  167,  43  N.  E.  Rep.  11. 

The  admissions  of  one,  since 
deceased,  while  he  held  title  to 
certain  lands  are  competent  evi- 
dence against  his  heirs  and  all 
persons  claiming  title  under  or 
through  him.  Chadwick  v.  Fonner, 
69  N.  Y.  404;  New  York  Water 
Co.  v.  Crow,  110  N.  Y.  App.  Div. 
32,  96  N.  Y.  Supp.  899,  aff'd  in 
187  N.  Y.  516,  79  N.  E.  Rep.  1112. 

Declarations  by  one  who  conveys 
to  his  mother,  who  names  him  as 
devisee  in  her  will,  to  the  effect 
that  the  property  conveyed  be- 
longed to  his  sister,  are  admissible 
after  the  death  of  the  mother,  they 
being  against  the  interest  of  the 
devisee.  Bucher  v.  Eaton,  151 
N.  Y.  App.  Div.  342,  135  N.  Y. 
Supp.  838. 


NEXT   OF   KIN,    DEVISEES   AND   LEGATEES 


459 


title  and  right  of  action  depended  have  been  performed, 
are  admissible  in  evidence  in  an  action  prosecuted  by  the 
heirs  of  the  person  making  the  admissions,  by  reason  of  the 
privity  between  them.81  But  the  declarations  of  the  ancestor 
in  favor  of  his  title,  are  not  admissible  for  any  one  claiming 
under  him,82  unless  brought  within  the  rule  of  the  res  gestce*3 


81  Spaulding   v.    Hallenbeck,   35 
N.  Y.  204,  affi'g  39  Barb.  79;  com- 
pare Savage  v.  Murphy,  8  Bosw. 
75,  aff'd  in  34  N.  Y.  508. 

Declarations  made  in  casual 
conversation  by  the  grantee  named 
in  the  deed  that  the  transfer  of  the 
property  to  him  was  only  condi- 
tional and  that  it  actually  belonged 
to  the  grantor,  are  inadmissible. 
Hamlin  v.  Hamlin,  192  N.  Y.  164, 
84  N.  E.  Rep.  805. 

82  Smith  v.  Martin,  17  Conn.  399; 
Hurlburt  ».  Wheeler,  40  N.  H.  73. 

Self-serving  declarations  of  a 
former  owner  of  lands  are  not  ad- 
missible in  support  of  his  succes- 
sor's title.  Jamison  v.  Dooley,  98 
Tex.  206,  82  S.  W.  Rep.  780; 
Steltemeier  v.  Barrett,  115  Mo. 
App.  323,  91  S.  W.  Rep.  56. 

The  declarations  of  the  dece- 
dent's husband  in  favor  of  her 
title  are  not  competent.  Storm 
v.  McGrover,  70  N.  Y.  App.  Div. 
33,  74  N.  Y.  Supp.  1032. 

Statements  of  one  in  possession 
of  land  explanatory  of  such  pos- 
session are  admissible  even  though 
they  be  self-serving  in  their  tend- 
ency. Grayson  v.  Lofland,  21 
Tex.  Civ.  App.  503,  52  S.  W.  Rep. 
121. 

While  it  is  competent  for  a  plain- 
tiff to  prove  the  declarations  of 
the  defendant's  testatrix,  it  is  not 


competent  for  the  defendant  to 
do  so  unless  the  declarations  were 
a  part  of  the  same  conversation  or 
statement.  Johnson  v.  Armfield, 
130  N.  C.  575,  41  S.  E.  Rep.  705. 

Declarations  and  admissions 
made  by  the  grantor  subsequent 
to  the  grant  are  not  admissible; 
but  where  the  grantor,  subse- 
quent to  the  grant,  settles  with 
and  releases  a  judgment  creditor 
who  had  a  lien  on  the  property,  the 
release  showing  the  terms  of  set- 
tlement is  admissible.  Nicholas 
v.  Lord,  118  N.  Y.  App.  Div.  800, 
103  N.  Y.  Supp.  681. 

Declarations  by  the  owner  of  a 
chattel  as  to  its  ownership  while 
in  possession  of  it  and  made  be- 
fore the  sale,  are  not  admissible 
against  the  purchaser.  Bentley  v. 
Ard,  69  N.  Y.  Misc.  562, 125  N.  Y. . 
Supp.  735. 

Declarations  made  after  a  gift 
of  the  property  are  not  admissible. 
Gick  v.  Stumpf,  204  N.  Y.  413,  97 
N.  E.  Rep.  865. 

The  declarations  of  a  husband 
that  funds  deposited  in  bank  in 
the  joint  names  of  husband  and 
wife  are  the  exclusive  property  of 
the  husband,  are  self-serving  and 
inadmissible.  Armstrong  v.  John- 
son, 93  Mo.  App.  492,  67  S.  W. 
Rep.  733. 

83  As    to    what    are    competent 


460 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


or  brought  home  to  the  other  party.  Upon  these  principles 
the  declarations  made  by  a  person  in  possession  of  land, 
tending  to  show  the  character  of  his  possession,  and  by  what 
title  he  claimed,84  if  made  while  both  holding  possession  and 
title,85  although  it  may  be  after  he  had  contracted  to  con- 
vey,86 are  competent.  But  parol  declarations  or  admissions, 
since  they  cannot  confer  or  divest  title,87  are  not  admissible 
as  evidence  of  title,  either  to  sustain  the  burden  of  proof  of 
title,  or  to  rebut  prima  fade  evidence,88  but  only  to  show  the 


within  the  rule  of  res  gestoe,  com- 
pare Meek  v.  Perry,  36  Miss. 
190,  259;  Baker  v.  Haskell,  47 
N.  H.  479;  Hood  v.  Hood,  2  Grant 
Penn.  Gas.  229;  Fellows  v.  Fellows, 
37  N.  H.  78,  85;  Smith  v.  Batty, 
11  Gratt.  752,  761. 

84  3  Abb.  N.  Y.  Digest,  2d  ed.  123. 

85  Vrooman  v.  King,  36  N.  Y.  477. 
There  being  two  persons  of  the 

same  name,  the  admissions  of  one 
made  while  he  was  occupying 
lands  that  they  belonged  to  the 
other  are  competent  against  a 
person  claiming  under  the  declar- 
ant. Simpson  v.  Dix,  131  Mass. 
179. 

^Chadwick  v.  Fonner,  15  Alb. 
Law  J.  431.  Testator's  declara- 
tions made  after  executing  the  will 
and  adverse  to  his  title,  are  held 
not  admissible  against  those  claim- 
ing under  the  will,  upon  this  prin- 
ciple, because  they  do  not  affect 
his  interest.  Boylan  ads.  Meeker, 
4  Dutch.  274;  and  see  Jackson  v. 
Kniffen,  2  Johns.  31;  1  Redf.  on 
Wills,  3d  ed.  539,  note. 

On  the  question  whether  a  former 
owner  had  dedicated  lands  for  a 
public  square,  the  declarations  of 
such  former  owner  as  to  the  pur- 


pose of  laying  out  the  public 
square  are  admissible.  Scott  r. 
Rockwall  County,  49  S.  W.  Rep. 
(Tex.  Civ.  App.)  932. 

Declarations  or  acts  of  a  grantor, 
made  subsequently  to  his  grant 
cannot  be  received  to  the  prejudice 
of  his  grantee's  rights,  or  persons 
claiming  under  him.  Williams  v. 
Williams,  142  N.  Y.  156,  36  N.  E. 
Rep.  1053. 

"Proof  that  an  intestate  stated 
in  his  life-time  that  he  did  not 
own  any  interest  in  certain  land, 
that  he  had  sold  out,  and  that  he 
allowed  others  to  deal  with  the 
land  as  their  own,  is  not  evidence 
sufficient  to  sustain  an  allegation 
in  a  complaint  against  the  adminis- 
trator, that  the  intestate  executed 
and  delivered  deeds  of  the  land. 
It  seems  such  evidence  is  inadmis- 
sible until  it  be  shown  that  a  con- 
veyance of  the  land  had  been  in 
Jact  executed  and  lost.  Thompson 
'v.  Lynch,  29  Cal.  189. 

Text  quoted  in  People  v.  Holmes, 
166  N.  Y.  540,  60  N.  E.  Rep.  249; 
Gilmartin  v.  Buchanan,  134  N.  Y. 
App.  Div.  587, 119  N.  Y.  Supp.  489. 

88  See  Jackson  v.  Cole,  4  Cow.  587; 
Walker  v.  Dunspaugh,  20  N.  Y.  170. 


NEXT   OF   KIN,    DEVISEES   AND    LEGATEES 


461 


nature  and  extent  of  the  possession  and  the  character  and 
quality  of  the  claim  of  title  under  which  it  was  held,89  or  other 
material  facts  resting  in  pais,  such  as  may  affect  the  question 
of  title, — for  instance,  the  time,  or  the  absolute  or  conditional 
character,  of  the  delivery  of  a  deed,90  or  a  disclaimer  of  title 
made  at  a  judicial  sale  under  circumstances  constituting 
an  estoppel,91  or  that  the  deed  to  the  declarant  was  fraud- 
ulent,92 or  the  existence  and  loss  of  a  will,93  or  other  facts 
inconsistent  with  his  claim  of  title.94  So  to  prove  the  an- 
cestor's parol  agreement  to  convey  (which  has  been  executed 
on  the  part  of  the  purchaser)  his  parol  declarations,  may  be 
proved  by  a  witness.95  But  evidence  of  admissions  made  by 


88  Jackson  v.  McVey,  15  Johns. 
234. 

The  acts  of  the  owner  of  the 
land  when  upon  it,  pointing  out  the 
monuments  and  location  of  his 
line,  and  his  declarations  made  at 
the  time  in  regard  to  them  when 
no  controversy  exists,  are  compe- 
tent after  his  death  to  prove  the 
location  of  the  line.  Royal  v. 
Chandler,  83  Me.  150,  21  Atl. 
Rep.  842;  Wilson  v.  Rowe,  93 
Me.  205,  44  Atl.  Rep.  615. 

Possession  is  prima  facie  evi- 
dence of  seizin  in  fee,  and  the 
declarations  of  the  possessor  that 
he  is  tenant  to  another  is  against 
his  own  interest,  and  therefore  is 
admissible.  Lowman  v.  Sheets, 
124  Ind.  416,  24  N.  E.  Rep.  351, 
7  L.  R.  A.  784;  Rutledge  v.  Hud- 
son, 80  Ga.  266,  5  S.  E.  Rep.  93. 

The  declarations  of  one  in 
possession  of  land  that  he  is  not 
the  owner  are  good  evidence  against 
his  successors.  Kotz  v.  Belz,  178 
111.  434,  53  N.  E.  Rep.  367. 

90  Keaton  v.  Dimmick,  46  Barb. 
158;  Varrick  v.  Briggs,  6  Paige,  323, 


22  Wend.  543.  Compare  Baker 
v.  Haskell,  47  N.  H.  479. 

"Mattoon  v.  Young,  45  N.  Y. 
696. 

92  Naughton  v.  Pettibone,  7  Conn. 
319. 

93Fetherly  v.  Waggoner,  11 
Wend.  (N.  Y.)  599. 

The  declarations  of  a  testator 
as  to  the  contents  of  a  lost  will 
are  admissible  to  prove  its  con- 
tents, the  declarations  being  those 
of  a  person  now  deceased,  having 
the  means  of  knowledge  without 
interest  to  misrepresent.  Lane  v. 
Hill,  68  N.  H.  275,  44  At.  Rep.  393, 
73  Am.  St.  Rep.  591. 

94  Rogers  v.  Moore,  10  Conn.  13. 

95  Knapp  v.  Hungerford,  7  Hun, 
588,  and  cases  cited. 

The  declarations  of  a  deceased 
person  who  was  so  situated  as  to 
have  the  means  of  knowledge,  and 
had  no  interest  to  misrepresent, 
are  competent  evidence  upon  a 
question  of  boundary,  whether 
the  same  pertains  to  public  tracts 
or  private  rights.  Keefe  v.  Sulli- 
van County  R.  Co.,  75  N.  H.  116, 


462 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


a  person  since  deceased  will  be  closely  scrutinized  and  the 
circumstances  under  which  they  are  alleged  to  have  been 
made  carefully  considered.96  A  recital  in  the  will,  that  the 
testator  had  executed  a  deed  to  the  defendant,  is  evidence 
against  his  heirs,  of  a  perfect  execution  of  such  deed,  and  of 
the  title  in  the  grantee.97  But  where  a  will  is  introduced  in 
evidence  as  containing  such  an  implied  admission  of  title 
in  a  stranger,  the  declarations  of  the  testator,  at  the  tune 
of  its  execution,  in  relation  to  it,  are  admissible  as  part  of  the 
res  gest(B.9B 

127.  Declarations  of  Third  Persons. 

Evidence  of  the  acts  and  declarations  of  third  persons, 
when  in  possession  of  the  lands,  are  competent  to  prove  the 
continued  possession  under  the  will.99 


71  Am.  Rep.  379;  Nutter  v.  Tucker, 
67  N.  H.  185,  30  Am.  Rep.  352,  68 
Am.  St.  Rep.  647;  Lawrence  v.  Ten- 
nant,  64  N.  H.  532,  15  AtL  Rep. 
543. 

"Laurence  v.  Laurence,  164  111. 
367,  45  N.  E.  Rep.  1071. 

Where  one  deposits  money  in 
bank  in  trust  for  another,  and  sub- 
sequently makes  statements  as  to 
the  purpose  of  the  trust,  such  dec- 
larations will  not  be  admissable 
as  against  the  beneficiary  in  a  suit 
by  the  latter  against  the  executor 
of  the  depositor  as  to  the  title  of 
the  money.  Tierney  v.  Fitz- 
patrick,  195  N.  Y.  433,  88  N.  E. 
Rep.  750. 

97  Smith  v.  Wait,  4  Barb.  28. 

r8  Testator  devised  lands  to  de- 
fendant, and,  in  the  same  will, 
gave  legacies  to  plaintiffs,  on  con- 
dition that  they  release  all  their 
right,  etc.,  to  the  lands  devised. 
Held,  that  defendants  could  give 


parol  evidence  of  testator's  con- 
temporaneous declarations,  that 
the  condition  was  not  an  admis- 
sion of  such  title,  but  only  by  way 
of  caution  against  an  unfounded 
claim.  The  devisees  were  not  a 
party  to  the  legacy,  nor  did  they 
claim  under  it  within  the  rule. 
Clark  v.  Wood,  34  N.  H.  447,  452. 
"Jackson  v.  Van  Dusen,  5 
Johns.  144.  To  raise  a  presump- 
tion that  A.  or  his  executors  an- 
ciently conveyed  away  land,  which 
his  heirs  sue  to  recover,  from  a  mere 
possessor,  after  many  years'  neglect 
to  claim,  the  defendant  may  prove 
deeds  between  third  persons  of 
adjoining  land  describing  the  land 
in  question  as  the  property  of 
others  than  A.,  and  may  adduce  the 
testimony  of  a  witness  that  he  had 
known  the  lands  for  upwards  of 
40  years,  and  the  general  repute  as 
to  their  ownership,  and  that  he 
never  heard  of  any  claim  of  title 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


463 


128.  Declarations    of    Successors,    Representatives    and 

Beneficiaries. 

The  admissions  or  acts  of  the  executor  or  administrator, 
unless  made  so  by  statute,1  are  not  competent  evidence 
against  the  heir  or  devisee.2  A  mere  common  interest  will 
not  make  the  confessions  of  one  person  evidence  against 
another, — a  joint  interest  in  possession  is  necessary.3  Hence 
the  declarations  of  the  executors  or  administrators  are  not 
competent  aganist  any  other  parties  who  have  not  a  joint 
interest,  and  do  not  stand  in  a  relation  of  privity.4  Con- 
versely, the  admission  of  an  heir  cannot  prejudice  the  exec- 
utor.5 And  in  the  case  of  several  heirs,6  and  equally  in  the 
case  of  beneficiaries  under  the  same  will,  if  their  interests  are 
several,  not  joint,7  evidence  of  the  admissions  and  declara- 
tions of  one  is  not  competent  against  the  other.  The  prin- 
ciple is  that  a  common  interest  is  not  enough,  but  a  joint 
interest, — as  where  both  claim  under  a  contract  naming 
them  as  beneficiaries, — may  be.8  The  declarations  and 


by  or  under  A.    Schauber  v.  Jack- 
son, 2  Wend.  19,  20. 

1  Regan  v.  Grim,  13  Penn.  St. 
508,  513. 

2  Mooers  v.  White,  6  Johns.  Ch. 
360;  Baker  v.  Kingsland,  10  Paige, 
366. 

The  admissions  of  an  adminis- 
trator cannot  bind  the  estate  un- 
less they  were  made  while  in  the 
discharge  of  his  duties.  Scully  v. 
McGrath,  201  N.  Y.  61,  94  N.  E. 
Rep.  195. 

3  Osgood  v.  Manhattan  Co.,  3 
Cow.  612. 

4  Shailer  v.  Bumstead,  99  Mass. 
112.     The    declarations    and   ad- 
missions of  the  sole  executor,  he 
being  a  party  in  interest  and  a 
party    to    the    record,    were   held 
admissible  against  him  and  those 
represented  by  him,  on  the  ques- 


tion of  fraud  or  undue  influence, 
in  Davis  «.  Calvert,  5  Gill  &  J.  269. 

5  2  Whart.  Ev.,  §  1199,  a.    And 
it  has  been  held  that  the  declara- 
tions  of   the  legatee  against  the 
validity  of  the  will  are  not  com- 
petent against  the  executor.    Dil- 
lard  v.  Dillard,  2  Strobh.  L.  89. 

6  Osgood   v.   Manhattan   Co.,   3 
Cow.  612,  rev'g  15  Johns.  162. 

7 1  Bright.  Penn.  Dig.  962,  and 
cases  cited. 

8  P.  235.  So.  L.  Ins.  Co.  v. 
Wilkinson,  53'  Geo.  535.  Contra, 
Milton  v.  Hunter,  4  Law  &  Eq.  R. 
336.  The  rule  of  exclusion  stated 
in  the  text,  while  applicable  un- 
qualifiedly on  probate  where  the 
issue  is  not  as  to  the  right  of  any 
one  party,  but  as  to  the  validity 
of  the  will,  as  an  entirety,  may  be 
thought  subject  to  qualification  in 


4(54 


ACTIONS   BY   AND   AGAINST  HEIRS   AND 


admissions  of  one  of  several  joint  legatees  or  devisees, 
showing  fraud  or  undue  influence  by  them,  is  competent 
against  both.9  In  the  case  of  a  combination  by  several  per- 
sons to  procure  the  making  of  the  will,  the  separate  admis- 
sions of  either  are  competent  against  the  others,10  unless  made 
after  they  have  ceased  co-operation,  hi  which  case  they  are 
not.11 

129.  Judgments. 

A  judgment  or  verdict  for  12  or  against 13  the  ancestor  is 
competent  evidence  for  or  against  the  heir  hi  controversies 
relating  to  the  inheritance.  A  judgment  or  verdict  for  14 
or  against 15  an  executor  or  administrator  is  never  conclusive 


civil  actions  affecting  only  the 
parties  to  the  record  and  specific 
property.  In  such  cases  it  may 
bje  proper  to  admit  the  evidence 
against  the  declarant,  if  none  of 
the  others  having  an  interest,  who 
are  parties  to  the  record,  are  liti- 
gating the  question,  or  if  there  is 
other  evidence  which,  as  matter  of 
law,  is  sufficient  to  establish  the 
fact  as  against  them.  This  dis- 
tinction may  explain  something 
of  the  conflict  of  the  cases.  Com- 
pare Nessar  v.  Arnold,  13  Serg.  & 
Rawle,  323;  Clark  v.  Morrison, 
25  Penn.  St.  452;  Morris  v.  Stokes, 
21  Geo.  Rep.  552;  Blakey's  Heirs 
v.  Blakey's  Executors,  33  Ala.  611. 

8  Horn  v.  Pullman,  10  Hun,  471. 

"Lewis  v.  Mason,  109  Mass. 
169. 

11  Shailer  v.  Bumstead,  99  Mass. 
112. 

12  Lock  v.  Norbone,  3  Mod.  142. 

13  Freeman  on  Judgments,  §  168. 
The  heirs,  being  in  privity  with 

their  ancestor,  are  bound  equally 
with  him  by  proceedings  on  a 


mortgage  containing  the  pact  de 
non  alienando.  Shields  v.  Shiff, 
124  U.  S.  351,  8  S.  Ct.  510,  31  L.  ed. 
445. 

Where  the  question  whether  a 
woman  had  a  husband  living  at 
the  time  of  her  second  marriage 
has  been  litigated,  and  then  di- 
rectly passed  upon  by  a  court  of 
competent  jurisdiction,  it  cannot 
thereafter  be  brought  in  question 
in  any  subsequent  action  between 
the  same  parties  or  their  heirs  or 
privies.  Lythgoe  v.  Lythgoe,  75 
Hun,  147,  26  N.  Y.  S.  1063;  aff'd 
in  145  N.  Y.  641,  41  N.  E.  Rep. 
89. 

14  Dale  v.  Roosevelt,  1  Paige,  35. 

"McCoy  v.  Nichols,  4  How. 
(Miss.)  31;  Vernon  v.  Valk,  2  Hill. 
Ch.  257;  Collinson  v.  Owens,  6 
Gill  &  J.  4;  Robertson  v.  Wright, 
17  Gratt.  534;  Early  v.  Garland, 
13  Id.  1.  Except,  perhaps,  where 
the  executor  is  the  sole  devisee  of 
the  real  estate.  Stewart  v.  Mont- 
gomery, 23  Penn.  St.  410;  or  where 
he  represents  him  as  trustee, 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


465 


against  the  heirs  or  devisees;  and  a  judgment  or  verdict 
against  the  heir  or  devisee  is  not  conclusive  against  the  exec- 
utor or  administrator.16  A  judgment  or  verdict  against  the 
executor  or  administrator  is  not  even  competent  evidence 
against  the  heir  or  devisee,  as  evidence  of  the  existence  of 
the  debt  or  other  facts  established  thereby.17  A  judgment  or 


within  the  settled  principles  of  the 
law  of  trusts. 

The  legatees  cannot  assail  a 
judgment  recovered  against  the 
legal  representatives  of  the  tes- 
tator. Bell  v.  Bell,  25  S.  C.  149. 

There  is  no  privity  between  the 
personal  representative  and  the  heir, 
and  a  judgment  against  the  former 
is  no  evidence  against  the  latter  in 
proceedings  to  subject  lands  de- 
scended. Lehman  v.  Bradley,  62 
Ala.  31. 

The  heir  will  not  be  bound  by  a 
judgment  against  ,the  adminis- 
trator affecting  real  estate,  where 
the  heir  was  not  a  party  to  the 
action.  Clark  v.  Bettelheim,  144 
Mo.  258,  46  S.  W.  Rep.  135. 

There  is  no  privity  between  the 
administrator  and  the  heir  so  far 
as  regards  the  decedent's  real 
estate.  Eayrs  v.  Nason,  54  Neb. 
143,  74  W.  N.  Rep.  408. 

A  judgment  in  the  probate  court 
against  an  administrator  bars  the 
heirs  from  suing  again  in  that  court. 
Pearce  v.  Leitch,  43  Tex.  Civ.  A. 
398,  96  S.  W.  Rep.  1094. 

In  Louisiana,  where  a  succes- 
sion, though  apparently  solvent, 
owes  debts  and  is  unsettled,  and 
the  heirs,  though  present,  have 
not  accepted  the  succession,  the 
administrator  may  be  sued  in  a 
real  action  and  the  judgment  will 


be  binding  on  the  heirs.  Texas, 
etc.,  Ry.  Co.  v.  Smith,  33  C.  C.  A. 
648,  91  Fed.  Rep.  483. 

An  heir  is  not  bound  by  a  judg- 
ment against  the  administrator 
if  the  heir  was  not  a  party.  Jones 
v.  Wilkey,  78  Fed.  Rep.  532. 

Where  an  administrator  sues 
on  a  covenant  made  by  the  de- 
cedent's lessee  to  pay  rent,  his 
recovery  will  bar  the  heirs  from 
suing  on  the  same  covenant. 
Walsh  v.  Packard,  165  Mass.  189, 
42  N.  E.  Rep.  577,  52  Am.  St.  Rep. 
508,  40  L.  R.  A.  321. 

A  judgment  against  the  adminis- 
trator of  the  succession  of  a  dece- 
dent is  binding  upon  the  heirs  of  the 
decedent,  if  the  heirs  tacitly  as- 
sent to  the  judgment.  Genella 
v.  McMurray,  49  La.  Ann.  988, 
22  So.,  Rep.  198. 

A  judgment  against  the  heirs  of 
a  decedent  is  not  binding  upon  the 
administrator  unless  he  was  made 
a  party  to  the  action.  Forbes  v. 
Douglass,  175  Mass.  191,  55  N.  E. 
Rep.  847. 

16  Dorr  v.  Stockdale,   19   Iowa, 
269;  Combs  v.  Tarlton's  Adm'r,  2 
Dana,  464. 

17  Kent  v.  Kent,  62  N.  Y.  560, 
and    cases    cited;    Robertson    v. 
Wright,  17  Gratt.  534;  Laidley  v. 
Kline,  8  W.  Va.  218,  230.    Contra, 
Harvey  v.  Wilde,  L.  R.  14  Eq.  C. 


466 


ACTIONS   BY   AND   AGAINST   HEIRS   AND 


verdict  for  or  against  the  heirs  does  not  bind  the  devisees,18 
nor  conversely.  A  judgment  in  an  action  under  the  statute 
to  charge  an  heir  with  the  debt  of  the  ancestor  necessarily 
determines  the  title  of  the  ancestor,  as  against  the  parties 
to  the  action  and  those  claiming  under  them,  and  is  conclu- 
sive on  them  as  to  that  question.19  A  judgment  in  a  suit  by 


438,  s.  c.,  3  Moak's  Eng.  811.  Com- 
pare Early  v.  Garland,  13  Gratt.  1; 
Garnet  v.  Macon,  6  Call,  308,  337. 

A  judgment  rendered  against 
the  personal  representative  of  a 
decedent  is  not  even  prima  facie 
evidence  against  the  heirs.  Sadd- 
ler i>.  Kennedy,  26  W.  Va.  636. 

A  judgment  against  an  adminis- 
trator is  not  binding  upon  the 
next  of  kin  who  were  not  parties 
to  the  suit.  Riley  v.  Ryan,  103 
N.  Y.  App.  Div/ 176,  93  N.  Y. 
Supp.  386. 

Under  §  2756,  Code  of  Civ.  Pro. 
(1900)  in  a  proceeding  before  the 
surrogate  to  sell  the  real  estate 
of  the  decedent  to  pay  his  debts,  a 
judgment  against  the  executor  is 
presumptive  evidence  of  the  debt. 
This  is  the  only  change  from  the 
common-law  rule  in  New  -York. 
Burnham  v.  Burnham,  46  N.  Y. 
App.  Div.  513,  62  N.  Y..  Supp.  120, 
aff'd  in  165  N.  Y.  659,  59  N.  E. 
Rep.  1119. 

A  judgment  against  an  executor 
is  not  evidence  in  an  action  against 
the  devisees  to  recover  the  debt. 
Burnham  v.  Burnham,  46  N.  Y. 
App.  Div.  513,  62  N.  Y.  Supp.  120, 
aff'd  in  165  N.  Y.  659,  59  N.  E. 
Rep.  1119. 

18Cowart  v.  Williams,  34  Geo. 
167. 

Unless   the   devisees    are   made 


parties  to  the  action,  a  judgment 
against  the  heirs  is  not  binding 
upon  them.  Weeks  v.  Downing, 
30  Mich.  4;  Harper  v.  Baird,  18 
Ky.  L.  Rep.  110,  35  S.  W.  Rep. 
638. 

A  judgment  against  one  of  a 
number  of  heirs  is  no  bar  against 
action  by  any  of  the  others. 
Farmer  v.  Farmer,  93  Ind.  435. 

A  judgment  obtained  by  one 
residuary  legatee  is  no  bar  to  an 
action  by  another  residuary  legatee, 
based  on  the  same  facts,  even 
though  the  latter  legatee  was 
made  a  party  defendant  in  the 
former  action  but  did  not  appear 
therein,  and  if  he  had  appeared  and 
litigated,  his  cause  of  action  would 
have  been  no  defense.  Earle  v. 
Earle,  173  N.  Y.  480,  66  N.  E. 
Rep.  398,  affi'g  73  App.  Div.  300, 
76  N.  Y.  Supp.  851. 

"Hudson  v.  Smith,  39  Super. 
Ct.  (J.  &  S.)  452.  A  judgment  for 
or  against  the  heir  not  as  such, 
but  in  his  individual  character, 
has  been  held  not  a  bar  against 
him  when  he  appears  "as  heir." 
Jennings  v.  Jones,  2  Redf.  Surr. 
95.  See,  also,  Rathbone  v.  Hooney, 
58  N.  Y.  463;  Sharpe  v.  Freeman, 
45  N.  Y.  802,  affi'g  2  Lans.  171. 

In  Missouri  and  North  Carolina 
a  judgment  against  an  adminis- 
trator in  the  absence  of  fraud  or 


NEXT   OF   KIN,   DEVISEES   AND    LEGATEES 


467 


a  legatee  on  behalf  of  himself  and  all  others  who  might  come 
in,  etc.,  is  not  conclusive  on  infant  legatees  who  did  not 


come  in. 


20 


.  ACTION   TO   CHARGE   HEIR,   NEXT   OF  KIN, 
ETC.,  WITH  ANCESTOR'S  DEBT 

130.  Material  Facts. 

In  an  action  against  heirs  or  next  of  kin,  on  a  debt  of  the 
ancestor,  the  plaintiff  must  allege  21  and  prove,  affirmatively, 
a  case  within  the  provisions  of  the  statute  which  creates  the 
right  of  action.22  His  failure  to  prove  everything  that  the 
statute  demands,  is  sufficient  to  prevent  a  recovery.23  He 


collusion,  is  conclusive  on  the  heirs 
as  well  as  the  administrator,  as 
establishing  the  debt,  and  this 
being  established,  subsists  in  full 
force  for  subjecting  all  the  estate 
of  a  debtor,  real  as  well  as  personal, 
the  former  after  the  latter,  to  the 
payment  of  his  liabilities.  Speer 
v.  James,  94  N.  C.  417;  Proctor 
r.  Proctor,  105  N.  C.  222,  10  S.  E. 
Rep.  1036;  Moody  ».  Peyton,  135 
Mo.  482,  36  S.  E.  Rep.  621,  58 
Am.  St.  Rep.  604. 

20  Brower  v.  Bowers,  1  Abb.  Ct. 
App.  Dec.  214;  compare  Kerr  v. 
Blodgett,  48  N.  Y.  62. 

An  adjudication  in  regard  to  the 
construction  of  a  will  does  not 
bind  the  unborn  children  who  take 
by  purchase  directly  from  the  tes- 
tator. Smith  v.  Secor,  157  N.  Y. 
402,  52  N.  E.  Rep.  179;  Harrison 
t.  McAdam,  38  N.  Y.  Misc.  18, 
76  N.  Y.  Supp.  701. 

"  Renard  v.  West,  48  Ind.  159. 

Where  the  petition  does  not 
allege  a  case  within  all  the  require- 
ments of  the  statute  a  demurrer 


will  lie.  Fretwell  v.  Fretwell,  114 
Ga.  303,  40  S.  E.  Rep.  298. 

The  statute  being  in  derogation 
of  the  common  law  must  be  strictly 
complied  with.  Clevenger  v.  Mat- 
thews, 165  Tnd.  689,  76  N.  E.  Rep. 
542,  rev'g  75  N.  E.  Rep.  (Ind.  App.) 
23. 

The  property  inherited  by  the 
heirs  must  be  specifically  de- 
scribed by  the  claimant  in  his  pe- 
tition before  he  can  recover.  Blinn 
v.  McDonald,  92  Tex.  604,  46  S.  W. 
Rep.  787,  48  S.  W.  Rep.  571,  50  S. 
W.  Rep.  931,  rev'g  83  S.  W.  Rep. 
(Tex.  Civ.  App.)  384. 

"Mersereau  v.  Ryerss,  3  N.  Y. 
261. 

»>  Selover  v.  Coe,  63  N.  Y.  443. 

Under  §  3870,  Ky.  St.  1903,  no 
recovery  can  be  had  on  a  claim 
against  the  estate  of  a  decedent 
unless  an  affidavit  verifying  the 
claim  is  filed.  Isom  v.  Holcomb, 
33  Ky.  Law  Rep.  307,  110  S.  W. 
Rep.  249. 

Action  against  the  heirs  of  a 
decedent  under  Code  Civ.  Pro., 


468 


ACTIONS   BY   AND   AGAINST  HEIRS   AND 


must  show  the  granting  of  letters; 24  that  his  action  is  brought 
after  three  years  from  the  grant  of  letters; 25  that  defendant 
inherited  real  property  by  descent,  or  acquired  real  or  per- 
sonal property  under  the  decedent's  will,  or  the  statute  of 
distributions;  and  that  the  decedent  left  no  personal  prop- 
erty within  the  State,  or  that  the  same  was  insufficient  to 
pay  the  debt,  or  that  the  debt  could  not  be  collected  by  due 
proceedings  before  the  proper  surrogate,  and  at  law,  from 
the  personal  representatives  of  the  decedent,  nor  (if  the  ac- 
tion is  against  the  heir)  from  the  next  of  kin  or  legatees.26 


§  1843,  is  limited  to  the  direct 
heirs  and  cannot  be  brought  against 
the  heirs  of  deceased  heirs.  Green 
v.  Dunlop,  136  N.  Y.  App.  Div. 
116, 120  N.  Y.  Supp.  583. 

The  plaintiff  can  obtain  a  per- 
sonal judgment  against  the  de- 
visees even  though  he  does  not 
demand  a  personal  judgment  in 
the  complaint.  Lawrence  v.  Grout, 
140  N.  Y.  App.  Div.  629, 125  N.  Y. 
Supp.  982. 

"Roe  v.  Sweezey,  10  Barb.  251. 

In  order  to  succeed  in  his  action 
under  §  1837,  Code  Civ.  Pro.,  the 
plaintiff  must  show  that  letters 
of  administration  were  issued,  that 
the  assets  of  the  deceased  were 
distributed,  and  that  the  defendant 
received  a  portion  of  them.  Siegel 
v.  Cohen,  23  N.  Y.  Misc.  365,  51 
N.  Y.  Supp.  318. 

15  Now  one  year.  See  L.  1915, 
c.  636;  Selover  v.  Coe  (above). 

Section  1844,  Code  Civ.  Pro., 
now  provides  that  action  to  en- 
force liability  of  heirs  cannot  be 
brought  unless  one  year  has 
elapsed  since  death  of  decedent 
and  no  letters  have  been  issued 
within  the  state  or  unless  eighteen 


months  have  elapsed  since  letters 
have  been  issued  within  the  state. 

26  Armstrong  v.  Wing,  10  Hun, 
520,  63  N.  Y.  438;  Roe  v.  Sweezey 
(above);  Stuart  v.  Kissam,  11 
Barb.  282. 

An  action  cannot  be  maintained 
against  the  heir  of  the  real  estate 
where  it  is  shown  that  there  was 
ample  personalty  to  pay  the 
claim;  but  if  the  heir  shared  in  the 
personalty,  the  action  can  be 
maintained  against  him.  Glenn  v. 
Sothoron,  4  App.  D.  C.  125. 

The  heirs  are  not  bound  to  pay 
the  debts  or  discharge  the  obliga- 
tions of  the  ancestor  unless  they 
have  received  property  from  the 
estate,  and,  if  they  have  received 
assets,  they  are  responsible  for 
such  debts  and  obligations  only 
to  the  extent  of  their  inheritance. 
Bacon  v.  Thornton,  16  Utah,  138, 
51  Pac.  Rep.  153. 

The  liability  of  a  devisee  under 
§  101  of  the  Decedent  Estate  Law 
(L.  1909,  c.  18)  is  limited  to  the 
value  of  the  property  devised. 
Richards  v.  Gill,  138  N.  Y.  App. 
Div.  75,  122  N.  Y.  Supp.  620. 

The  complaint  must  allege  the 


NEXT   OP   KIN,   DEVISEES   AND    LEGATEES  469 

131.  Mode  of  Proof. 

The  lapse  of  time  since  administration  granted  cannot 
create  any  presumption  as  to  the  statute  conditions.27  The 
acts  or  admissions  of  executors,  etc.,  of  insolvency  of  the 
decedent,  are  not  evidence  against  heirs  or  devisees,  even 
to  bind  the  lands  descended  or  devised.28  A  judgment 
against  the  executor  or  administrator  is  not  evidence  in  the 
statutory  action  against  the  decedent's  heir,  next  of  kin, 
or  legatee,  to  prove  the  existence  of  the  claim  or  demand;  M 
but  the  claim  being  established  by  evidence  aliunde,  the 
record  is  evidence  that  an  action  has  been  brought  within 
the  time  allowed  by  law,  and  a  judgment  recovered  thereon, 
and  is  conclusive  evidence  that  there  is  no  bar,  under  the 
statute,  of  the  claim  as  against  the  personal  representatives, 
available  to  the  defendant.30  And  if  the  judgment  is  less 
than  the  debt  claimed,  and  there  is  evidence  of  the  identity 
of  the  debt  with  the  cause  of  action  in  judgment,  the  judg- 
ment is  conclusive  against  the  plaintiff  as  a  limit  of  the 
amount  of  his  recovery.31  The  return,  unsatisfied,  of  execu- 

value  of  the   property   inherited,  them  may  contest  the  legality  of 

and  the  amounts  of  mortgages  and  such  allowance,  it  not  being  bind- 

liens  existing  against  it  so  that  the  ing  upon  the  heir  or  devisee.    Black 

court  can  determine  how  large  the  v.  Elliott,  63  Kan.  211, 65  Pac.  Rep. 

inheritance     was     and     to    what  215,  88  Am.  St.  Rep.  239. 

amount  the  heir  is  liable.    Green  A  judgment    against  the  exec- 

v.  Dunlop,  136   N.  Y.  App.  Div.  utrix,    who  is   also    sole   devisee, 

116,  120  N.  Y.  Supp.  583.  does  not  bind  her  personally,  which 

17  Armstrong  v.  Wing  (above).  can  only  be  done  by  proving  all 

28  Osgood    v.    Manhattan    Co.,  the  facts  on  which  the  prior  judg- 

3  Cow.  612,  rev'g  15  Johns.  162.  ment  was  obtained.     Richards  v. 

M  Sharpe  v.  Freeman,  45  N.  Y.  Gill,  138  N.  Y.  App.  Div.  75,  122 

802.    Contra,  Steele  v.  Lineberger,  N.  Y.  Supp.  620. 

59  Perm.  St.  308;  Stone  v.  Wood,  3°Kent   v.    Kent,    62    Id.    560, 

16  111.  177,  182.  rev'g  3  Supm.  Ct.  (T.  &  C.)  630. 

Where   the   probate   court   has  31  Rockwell  v.  Geery,  4  Hun,  611, 

allowed  a  claim  which  will  subject  s.  c.,  6  Supm.  Ct.  (T.  &  C.)  687. 

the  lands  of  the  decedent  to  the  The  amount  to  be  recovered  by 

payment   of  his    debts,    the   heir  the    plaintiff    is    limited    to    the 

or  devisee  or  those  claiming  under  amount  which  was  received  by  the 


470  ACTIONS   BY   AND   AGAINST  HEIES   AND 

tion  against  the  executor  or  administrator,  is  not  sufficient 
proof  of  want  of  assets,  for  there  may  have  been  a  misappro- 
priation of  assets,  for  which  the  remedy  is  by  accounting.32 
But  if  it  be  shown  that  an  accounting  has  been  prosecuted, 
the  fact  that  there  are  unrealized  assets,  or  that  assets  have 
come  to  the  hands  of  the  representative  since  the  commence- 
ment of  the  present  action,  is  not  a  bar,  nor  does  it  necessarily 
reduce  the  recovery,33  but  may  restrain  enforcement  of  the 
judgment. 

devisees.    Lawrence  v.  Grout,  140  515;  Stuart  v.  Kissam,  11  Barb. 

N.  Y.  App.  Div.  629,  125  N.  Y.  282. 

Supp.  982.  "  Rockwell  v.  Geery  (above). 
"  Wambaugh  v.  Gates,  11  Paige, 


CHAPTER  VI 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE 


I.  GENERAL  PRINCIPLES. 

1.  Marriage. 

2.  Foreign  law. 

3.  Competency  of  husband  or 

wife  as  witness. 

4.  Their  admissions  and   dec- 

larations. 

5.  Agency     of    one     for     the 

other. 

6.  Estoppel. 

7.  Judgments. 

8.  Evidence  of  husband's  title. 

9.  Evidence  of  wife's  title. 

10.  Evidence  of  transfer  by  one 

to  the  other. 

11.  Tacit  transfers. 

12.  —the  old  rule. 

13.  — the  new  rule. 

14.  Evidence  of  his  application 

of  her  funds. 

15.  Evidence    of    her    convey- 

ance. 

16.  Impeaching  her  conveyance. 

17.  Evidence  of  wife's  separate 

business. 

II.  ACTIONS  BY  OR  AGAINST  HUS- 

BAND. 

18.  Action  by  him  founded  on 

marital  right. 

19.  Defenses. 


20.  Action 'against  him  founded 

on  marital  obligation. 

21.  Action  against  him  founded 

on  her  agency. 

22.  Defenses. 

23.  Action  for  necessaries. 

24.  Defenses. 

25.  Causes  of  separation. 

III.  ACTIONS        BY        A        MARRIED 

WOMAN. 

26.  Her  pleading  in  her  action 
on  contract. 

27.  Evidence  of  the  contract. 

28.  Her  action  for  tort. 

IV.  ACTIONS  AGAINST  HER. 

29.  Pleading   in   action   against 

her  on  contract. 

30.  Evidence  of  the  contract. 

31.  The  making  of  the  contract. 

32.  The    English    rule    as    to 

charging  the  separate  es- 
tate. 

33.  The  New  York  rule. 

34.  — direct  benefit  to  separate 

estate. 

35.  Action  against  her  for  nec- 

essaries. 

36.  —for   fraud. 

37.  Husband's  coercion  of  wife. 


I.  GENERAL  PRINCIPLES34 
1.  Marriage. 
In  all  civil  actions  and  proceedings  affecting  only  ques- 


34  The    statutes    of    the    State 
should  be   carefully   consulted   in 


connection  with  the  statements  in 
this  chapter.    Unless  such  a  stat- 
471 


472 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


tions  of  property  or  torts,  not  involving  any  question  of  mar- 
ital infidelity,  marriage  may  be  proved  either  by  direct  ev- 
idence, or  by  evidence  of  cohabitation  and  repute,  or  co- 
habitation and  declarations,  in  the  manner  stated  in  the 
last  chapter.35 

2.  Foreign  Law. 

The  generally  received  rule  is  that  the  original  title  of 
husband  or  wife  to  movables  is  controlled  by  the  law  of  place 
which  was  their  domicile  at  the  time  of  the  acquisition;  the 


ute  imposes  a  different  rule,  the 
general  principle  may  be  followed, 
that,  except  in  divorce  and  criminal 
conversation,  and  in  certain  cases 
of  confidential  communication,  the 
marital  relation  does  not  affect  the 
competency  of  evidence,  but  it 
does  often  affect  its  weight,  be- 
cause it  gives  rise  to  certain  pre- 
sumptions as  to  matters  within 
the  sphere  of  marital  influence; 
and,  in  consequence,  affirmative 
evidence  is  in  some  cases  neces- 
sary, when  in  the  case  of  single 
persons,  a  presumption  would  be 
allowed  without  evidence;  and,  in 
some  cases,  evidence  is  inadequate 
which  would  be  adequate  in  the 
case  of  single  persons.  In  other 
words,  to  the  extent  in  which 
modern  statutes  have  removed 
;  civil  disabilities  of  the  wife,  the 
same  rules  of  competency  apply 
to  the  transactions  and  the  testi- 
mony of  husband  and  wife,  as 
apply  to  those  of  other  persons. 
But  the  marital  relation  remains, 
and  to  the  extent  in  which  the 
conduct  of  either  is  had  within 
its  sphere,  the  influence  of  that 
relation  is  recognized  by  the  law 


as  an  element  of  great  impor- 
tance, in  estimating  the  just  weight 
of  facts  as  evidence,  and  the 
natural  presumptions  resulting. 
Thus  the  law  recognizes  and  draws 
presumptions  from  the  natural 
disposition  of  a  husband  to  make 
provision  for  his  wife;  her  dis- 
position to  be  silent,  or  even  ac- 
quiescent, for  the  sake  of  peace, 
in  the  face  of  his  wrongful  conduct 
toward  others,  or  toward  herself 
or  her  separate  property  rights; 
the  natural  disposition  of  each, 
without  claim  or  admission  of  trans- 
fer or  compensation,  to  hold  and 
allow  the  holding  of  the  exclusive 
property  of  one,  in  the  use  or 
safe-keeping  of  the  other;  and  the 
peculiar  facility  which  the  relation 
affords  for  undue  influence,  par- 
ticularly over  the  wife,  and  for  the 
transfer  to  her  of  property  in 
fraud  of  the  husband's  creditors. 
The  rules  stated  in  the  text  are 
founded  chiefly  on  these  principles, 
which  are  almost  universally  recog- 
nized, although  in  their  applica- 
tion some  disagreement  of  authority 
still  exists  in  the  several  States. 
35  Chap.  V,  paragraphs  14-23. 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE  473 

validity  of  their  transactions,  except  as  to  realty,  may  be- 
sustained  by  the  law,  either  of  the  place  of  the  transaction, 
or  of  the  place  fixed  on  by  the  contract  for  its  performance, 
or  of  their  domicile  at  the  time  of  the  transaction,  unless  the 
act  was  forbidden  by  positive  law  of  either  place;  and  the 
title  to  realty  and  the  validity  of  transactions  affecting  it, 
are  controlled  by  the  law  of  the  place  where  the  realty  is 
situated.  Domicile  is  to  be  proved  in  the  mode  stated  in 
the  last  chapter.36  The  courts  of  a  State  do  not  take  judicial 
notice  of  the  law  of  husband  and  wife  in  other  States;  and 
a  party  who  desires  to  rely  on  such  law  should  be  prepared 
to  prove  it  as  matter  of  fact.  In  the  absence  of  such  proof, 
if  the  question  turns  on  the  law  of  a  State  deriving  its  juris- 
prudence from  England,  the  court  may  apply  the  rules  of 
the  old  common  law; 37  if  on  the  law  of  any  other  State,  the 
court  will  apply  the  law  of  the  forum.38  By  whatever  law 
the  right  is  determined,  the  form  of  the  remedy  and  the 
competency  of  evidence,  are  governed  by  the  law  of  the 
forum.39 

3.  Competency  of  Husband  or  Wife  as  Witness. 
The  New  York  statute  provides  that  no  person  shall  be 

36  Chap.  V,  paragraphs  51-57.          Hanna,  23  Mich.  530;  Adams  v. 

37  For  these  rules,  see   1   Bish.      Honness,  62  Barb.  326. 

Mar.  W.;  Ewell's  Cas.    The  tradi-          Where    a    wife    transfers    real 

tional  rule  is  that  the  courts  must  estate  in  New  York  to  her  husband 

do  so.    See  Waldron  v.  Ritchings,  as  a  gift,  and  later  obtains  a  di- 

9  Abb.  Pr.  N.  S.  359,  s.  c.  3  Daly,  vorce   in   Switzerland,    the   Swiss 

288.    But  the  changes  in  the  law  laws  requiring  the  husband  to  re- 

on  this  subject  are  so  general  and  turn  all  property  procured  by  rea- 

so  nearly  uniform  in  substance  in  son  of  the  marriage  will  not  be  en- 

the  States  deriving  their  jurispru-  forced  in  New  York.   VanCortlandt 

dence    from    England,    that    the  v.  De  Graffenried,  147  N.  Y.  App. 

courts  sometimes  hesitate  to  de-  Div.  825,  132  N.  Y.  Supp.  1107. 
clare   void   transactions   that   are          38  Savage  v.   O'Neil,  44   N.   Y. 

valid  by  the  law  of  the  forum,  and  298,  rev'g  42  Barb.  374. 
naturally  presumable  to  be  so  by          39Stoneman  v.  Erie  Ry.  Co.,  52 

the  law  of  the  sister  State,  but  for  N.  Y.  429,  affi'g  Buff.  Super.  Ct. 

this    rule.      See    Worthington    v.  (1  Sheld.)  286. 


474 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


excluded  or  excused 40  from  being  a  witness  because  he  or  she 
is  the  husband  or  wife  of  a  party,  or  of  a  person  in  whose 
behalf  the  action  or  special  proceeding  is  brought,  prosecuted, 
opposed,  or  defended.41  The  following  exceptions,  however, 
are  made: 42  "A  husband  or  a  wife  is  not  competent  to  testify 
against  the  other  upon  the  trial  of  an  action,  or  the  hearing 
upon  the  merits  of  a  special  proceeding  founded  upon  an 
allegation  of  adultery,  except  to  prove  the  marriage,  or  dis- 


40  The  common-law  entire  dis- 
qualification could  not  be  legally 
waived  by  consent.  2  Kent's 
Com.  178;  Parker  v.  Sir  Woolston 
Dixie,  C.  T.  Hardw.  264,  49  N.  Y. 
510;  Dwelley  v.  Dwelley,  46  Me. 
377;  Bevins  v.  Cline,  21  Ind.  37; 
Barbat  v.  Allen,  16  Jur.  338,  s.  c., 
10  Eng.  L.  &  Eq.  596;  Pedley  v. 
Wellesley,  3  Car.  &  P.  558.  But 
was  frequently  waived  in  prac- 
tice. And  in  some  later  cases  a 
waiver  was  held  legal;  and  the 
persons  competent  to  waive  it 
were  the  husband  and  wife — not 
the  parties  to  the  suit.  Russ  v. 
The  War  Eagle,  14  Iowa,  363; 
Blake  v.  Graves,  18  Id.  317,  DIL- 
LON, J.,  dissented;  Jordan  v.  An- 
derson, 19  Id.  565.  Objection  to 
wife's  competency  was  not  waived 
by  permitting  examination-in-chief . 
Schmidt  v.  Herfurth,  5  Robt.  124. 
But  see  Tappan  v.  Butler,  7  Bosw. 
480;  Boardman  v.  Boardman,  L. 
R.  1  P.  &  M.  233. 

«  N.  Y.  Code  Civ!  Pro.,  §  828. 
General  provisions  of  statute  re- 
moving disqualification  by  reason 
of  interest,  and  enabling  parties 
to  testify,  do  not  abrogate  the 
common-law  exclusion  of  husband 
and  wife  on  grounds  of  public 


policy.  Kelly  v.  Drew,  12  Allen, 
107,  109. 

In  an  action  to  recover  on  a 
bond  for  a  violation  of  a  Liquor 
Tax  Law,  the  defendant's  wife,  as 
such,  is  not  an  interested  witness. 
Green  v.  Altenkirch,  176  App.  Div. 
(N.  Y.)  320,  162  N.  Y.  Supp. 
447. 

42  2  N.  Y.  Code  Civ.  Pro., 
§831. 

An  application  for  an  order  for 
the  publication  of  a  summons  in 
an  action  for  a  divorce  was  denied 
where  such  application  was  based 
upon  the  plaintiff's  affidavit.  Per- 
weiler  v.  Perweiller,  160  N.  Y. 
Supp.  785. 

Where  the  only  statement  in 
support  of  a  wife's  application  for 
alimony  pendente  lite  was  her  al- 
legation, as  of  her  own  knowledge, 
that  the  defendant  committed  the 
act  which  was  the  basis  of  the 
action,  her  application  was  re- 
fused. Capes  v.  Capes,  173  App. 
Div.  (N.  Y.)  142,  159  N.  Y.  Supp. 
367. 

N.  Y.  Code  Civ.  Pro.,  §  831,  does 
not  render  a  husband  incompetent 
to  testify  in  an  action  for  divorce 
in  favor  of  the  wife,  if  he  waive 
his  personal  privilege.  Bailey  v. 
Bailey,  41  Hun,  424. 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


475 


prove  the  allegation  of  adultery.  A  husband  or  wife  43  shall 
not  be  compelled  44  or,  without  consent  of  the  other,  if  living, 
allowed  to  disclose  a  confidential  communication,45  made  by 
one  to  the  other  during  marriage.  In  an  action  for  criminal 
conversation,  the  plaintiffs  wife  is  not  a  competent  witness 
for  the  plaintiff,  but  she  is  a  competent  witness  for  the  de- 
fendant, as  to  any  matter  in  controversy;  except  that  she 
cannot,  without  the  plaintiff's  consent,  disclose  any  con- 
fidential communication  had  or  made  between  herself  and 
the  plaintiff."  Business  transactions  between  them  are  not 
confidential  communications  within  the  policy  of  the  stat- 
ute,46 nor  are  communications  made  in  the  presence  and 


43  The  marital  privilege  does  not 
apply  in  the  case  of  a  void  marriage. 
Bloomer  v.  Barrett,  37  N.  Y.  434; 
Kelly    v.    Drew,    12    Allen,    107, 
110. 

44  In  Hebblethwaite  v.  Hebbleth- 
waite,  L.  R.  2  Pr.  &  D.  29,  holds 
the  corresponding  English  statute, 
giving  a  privilege  to  the  witness, 
to  be  secured  by  the  judge;  and 
that  it  is  not  competent  to  counsel 
to  object  to  the  testimony. 

45  At  common  law,  for  reasons  of 
public  policy,  neither  husband  nor 
wife  could  testify  to  a  communica- 
tion of  whatever  nature,  confiden- 
tial   or    otherwise,    which    passed 
between  them.    O'Connor  v.  Ma- 
joribanks,  3  M.  &  Gr.  435,  S.  C. 
J.  6  Jur.  509;  and  even  death  or 
divorce    did  not  break    the  seal. 
Monroe    v.    Twistleton,    Peake's 
Add.  Cas.  210;  Southwick  v.  South- 
wick,  49  N.  Y.  510,  518,  affi'g  9 
Abb.   Pr.   N.    S.    109;   Dexter  v. 
Booth,  2  Allen  (Mass.),  559.    On 
the    same    ground    neither    was 
allowed  to  testify  to  matters  to 
the  detriment  of  the  other,  or  of 


the  character  of  the  other.  South- 
wick  v.  Southwick  (above);  Has- 
brouck  v.  Vandervoort,  9  N.  Y. 
153,  158,  160,  affi'g  4  Sandf. 
596;  People  v.  Mercein,  8  Paige, 
47,  50;  Burrell  v.  Bull,  3  Sandf.  Ch. 
15;  Barnes  v.  Camack,  1  Barb.  392; 
Marsh  v.  Potter,  30  Barb.  506; 
Stein  v.  Borman,  13  Pet.  209,  221; 
Scroggin  v.  Holland,  16  Mo.  419. 
These  rules  were  not  mere  rules  of 
evidence,  but  part  of  the  law  of  hus- 
band and  wife. 

At  common  law  neither  spouse 
was  competent .  to  testify  for  or 
against  the  other  in  actions  of  any 
kind.  Biers  v.  Biers,  156  App. 
Div.  409, 142  N.  Y.  Supp.  128. 

46  Southwick  v.  Southwick 
(above);  Schaffner  v.  Reuter,  37 
Barb.  44.  Otherwise  under  the 
Massachusetts  statute  protecting 
"private  conversations."  Bliss  v. 
Franklin,  13  Allen,  244;  Drew 
v.  Tarbell,  117  Mass.  90.  Wife 
acting  as  messenger,  not  an 
"agent,"  within  a  statute  rule  al- 
lowing wife  to  testify  for  or  against 
her  husband  only  within  the  limits 


476 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


hearing  of  third  persons.47    But  written  as  well  as  verbal 


of  her  agency  for  him.  Hale  v. 
Danforth,  40  Wis.  385. 

N.  Y.  Code  Civ.  Pro.,  §831, 
excludes  only  such  communica- 
tions as  are  expressly  made  con- 
fidential, or  such  as  are  of  a  con- 
fidential nature  or  induced  by  the 
marital  relation.  Ordinary  con- 
versations relating  to  matters  of 
business  which  the  husband  would 
not  be  unwilling  to  hold  in  the 
presence  of  any  person,  cannot  be 
excluded.  Parkhurst  v.  Berdell, 
110  N.  Y.  386,  18  N.  E.  Rep.  123, 
6  Am.  St.  Rep.  384. 

A  contract  between  husband 
and  wife  is  not  a  confidential  com- 
munication and  may  be  proved  by 
either.  Sedgwick  v.  Tucker,  90 
Ind.  271. 

The  negotiations  between  hus- 
band and  wife  prior  to  a  conveyance 
from  one  to  the  other  are  not  con- 
fidential communications.  Beit- 
man  v.  Hopkins,  109  Ind.  177,  9 
N.  E.  Rep.  720. 

Where  the  husband  acts  as  the 
agent  for  the  wife  in  keeping  an 
establishment  for  the  illegal  sale 
of  liquor,  the  wife  in  defending 
proceedings  brought  against  her 
cannot  testify  as  to  instructions 
which  she  gave  the  husband  in 
regard  to  the  conduct  of  the  place. 
Com.  v.  Hayes,  145  Mass.  289, 
14  N.  E.  Rep.  151. 

The  rule  of  privilege  does  not 
apply  to  communications  between 
husband  and  wife  with  regard  to  a 
business  matter  in  which  he  is  act- 
ing as  her  agent.  Lurty  v.  Lurty, 
107  Va.  466,  59  S.  E.  Rep.  405. " 


47  See  Allison  v.  Barrow,  3  Coldw. 
(Term.)  414;  State  v.  Center,  35 
Vt.  378.  Conversations  between 
husband  and  wife,  in  the  presence 
of  third  persons,  are  confidential 
communications  within  the  mean- 
ing of  the  statute.  Reynolds  v. 
State,  147  Ind.  3,  46  N.  E.  Rep.  31. 
The  fact  that  the  husband  was 
the  agent  of  his  wife  in  respect  to 
the  transaction  sought  to  be  in- 
quired about  does  not  make  him 
competent  to  testify  against  her 
as  to  his  relation  to  her  as  such 
agent;  Code,  §  3642,  providing 
that  neither  spouse  can  be  ex- 
amined as  to  any  communication 
between  them.  Kelley  v.  Andrews, 
102  Iowa,  119,  71  N.  W.  Rep.  251. 

Statements  made  by  husband  to 
wife  in  presence  of  a  third  person 
are  admissible.  People  v.  Lewis, 
62  Hun,  622,  16  N.  Y.  Supp.  881, 
aff'd  in  136  N.  Y.  633,  32  N.  E. 
Rep.  1014. 

Conversations  between  husband 
and  wife  in  the  presence  of  their 
fourteen  year  old  daughter  will  be 
admitted.  Lyon  v.  Prouty,  154 
Mass.  488,  28  N.  E.  Rep.  908. 

Communications  between  hus- 
band and  wife  had  in  the  presence 
of  a  child  not  capable  of  compre- 
hending what  was  being  said,  are 
not  communications  in  the  presence 
of  a  third  party.  Schierstein  v. 
Schierstein,  68  Mo.  App.  205. 

A  husband  in  contesting  his 
wife's  will  may  be  permitted  to 
testify  to  a  conversation  in  the 
presence  of  third  persons,  in  which 
she  admitted  and  agreed  that  cer- 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR  WIFE  477 


communications,  if  confidential,  are  within  the  policy  of 
the  rule.48 

4.  Their  Admissions  and  Declarations. 

When  either  husband  or  wife  is  strictly  incompetent  as  a 
witness,  either  generally  or  as  to  a  particular  fact,  evidence 


tain  real  estate  of  which  the  title 
stood  in  her  name  was  their  joint 
property.  In  re  Buckraan,  64  Vt. 
313,  24  Atl.  Rep.  252,  33  Am.  St. 
Rep.  930. 

In  a  suit  by  the  husband  for 
alienation  of  his  wife's  affections  he 
may  testify  as  to  conversations  be- 
tween her  and  him  had  in  the  pres- 
ence of  the  defendant.  Rudd  v. 
Dewey,  139  Iowa,  528,  116  N.  W. 
Rep.  1062. 

Where  the  wife  defends  a  suit 
on  a  note  executed  by  her  husband 
and  herself,  on  the  theory  that  it 
was  given  for  the  benefit  of  the 
husband  alone,  she  cannot  intro- 
duce conversations  between  her  and 
her  husband  which  were  not  had 
in  the  presence  of  a  third  party. 
National  Lumbermans'  Bk.  v. 
Miller,  131  Mich.  564,  91  N.  W. 
Rep.  1024,  100  Am.  St.  Rep.  623. 

48  See  Williamson  v.  Morton,  2 
Md.  Ch.  Dec.  94;  Bradford  v. 
Williams,  Id.  1 ;  Nelius  v.  Wrickell, 
Hayw.  N.  C.  19. 

Letters  which  passed  between 
husband  and  wife  are  confiden- 
tial communications  in  regard  to 
which  neither  of  them  can  be  ques- 
tioned. State  v.  Bell,  212  Mo.  Ill, 
111  S.  W.  Rep.  24. 

A  letter  written  by  the  husband 
to  the  wife  is  a  confidential  com- 
munication and  cannot  be  intro- 


duced in  evidence  to  show  his  at- 
titude toward  the  defendant  on 
trial  for  the  husband's  homicide. 
Wilkerson  v.  State,  91  Ga.  729, 
17  S.  E.  Rep.  990,  44  Am.  St.  Rep. 
63. 

In  a  suit  for  criminal  conversa- 
tion a  letter  to  the  defendant  writ- 
ten by  the  wife  in  the  presence  of 
the  husband  but  never  sent  to  the 
defendant  is  a  confidential  com- 
munication and  not  admissible. 
Smith  v.  Merrill,  75  Wis.  461,  44 
N.  W.  Rep.  759. 

A  letter  written  by  a  husband  to 
his  wife  while  he  was  in  jail  on  a 
charge  of  murder  is  not  admissible 
against  him,  it  being  a  confidential 
communication.  Scott  v.  Com- 
monwealth, 94  Ky.  511,  23  S.  W. 
Rep.  219,  42  Am.  St.  Rep.  371. 

A  woman  who  joins  with  her 
husband  in  the  execution  of  a  deed 
for  the  purpose  of  raising  money 
on  notes  is  estopped  from  denying 
the  validity  of  her  act  against  an 
innocent  purchaser  of  the  notes. 
Cooper  v.  Ford,  29  Tex.  Civ.  App. 
253,  69  S.  W.  Rep.  487. 

Massachusetts  Pub.  Sts.,  c.  169, 
§  18,  cl.  1,  excludes  private  con- 
versations between  husband  and 
wife,  but  not  letters  or  written 
communications.  Commonwealth 
v.  Caponi,  155  Mass.  534,  30  N.  E. 
Rep.  82. 


478 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


of  his  or  her  declaration  of  the  fact  is  incompetent,49  except 
in  the  following  cases:  The  declarations  of  either  are  com- 
petent; 1.  When  the  making  of  such  declarations  is  the 
material  fact.50  2.  When  the  declaration  is  part  of  the  res 
gestce  involved  in  an  act  properly  in  evidence.51  3.  When 
it  is  merely  matter  of  inducement  or  introduction  to  the 
language  or  conduct  of  another  person,  which  the  declaration 
offered  called  forth.52  4.  When  it  is  one  which  the  declarant 
made,  when  authorized,  expressly  or  impliedly,  to  speak  as 
the  other's  agent,  or  as  one  to  whom  the  other  referred  a 
third  person.53 


49Dawson  v.  Hall,  2  Mich. 
(Gibbs)  390;  Gardner  v.  Klutts, 
8  Jones  L.  (N.  C.)  375;  Karney  v. 
Paisley,  13  Iowa  (5  Withrow),  89. 
The  incompetency  of  the  witness 
enhances  the  reason  for  the  ex- 
clusion of  the  declaration.  Church- 
ill v.  Smith,  16  Vt.  560;  Nelius  v. 
Wrickell,  Hayw.  (N.  C.)  19. 

The  declarations  and  admissions 
of  a  wife  made  during  her  husband's 
lifetime  to  impeach  her  husband's 
title  to  certain  lands  are  not  ad- 
missible. Hoyt  v.  Zumwalt,  149 
Cal.  381,  86  Pac.  Rep.  600. 

A  statement  made  by  a  husband 
to  a  third  party  that  his  entire  busi- 
ness belongs  to  his  wife,  is  not 
admissible  in  evidence  in  an  ac- 
tion by  the  wife  against  creditors 
of  the  husband  for  damages  for 
levying  on  the  goods  and  stock  of 
the  business.  Tharp  v.  Page,  66 
Ark.  229,  50  S.  W.  Rep.  454. 

80  Of  this  class  of  cases  are  proofs 
of  demeanor  as  showing  affection. 

In  an  action  by  a  husband  for 
the  alienation  of  his  wife's  affec- 
tions, private  communucations  be- 
tween his  wife  and  himself  were 


held  admissible  to  show  the  state 
of  her  affections  where  they  did 
not  include  statements  of  what  the 
defendant  did  or  said.  McGinnis 
v.  McGlothlan,  192  Mo.  App.  141, 
180  S.  W.  Rep.  405. 

61  Williamson  v.  Morton,  2  Md. 
Ch.  94. 

Declarations  against  their  own 
interest  of  husband  and  wife  made 
at  the  time  of  executing  a  deed  to 
their  property,  in  presence  of  all 
parties  interested  in  the  transac- 
tion, are  admissible  as  part  of  the 
res  gestce.  Corporation  of  Mem- 
bers of  the  Church  of  Jesus  Christ 
of  Latter-Day  Saints  v.  Watson, 
25  Utah,  45,  69  Pac.  Rep.  531. 

Where  a  third  party  is  told  of 
the  communication  by  the  husband 
and  repeats  it  to  the  wife  and  she 
admits  the  substance  of  it,  it  is 
admissible.  Mclntire  v.  Schiffler, 
31  Colo.  246,  72  Pac.  Rep.  1056. 

52  Boules  v.  McEowen,  Penningt. 
(N.  J.)  499. 

53  Lay  Grae  v.  Patterson,  2  Sandf . 
338. 

The  statements  of  the  wife 
while  acting  as  agent  of  her 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


479 


The  privilege  from  testifying  to  confidential  communica- 
tions is  personal,  and  does  not  preclude  a  stranger  from 
testifying  to  them.54  But,  of  course,  all  the  rules  excluding 
hearsay  apply. 

When  a  husband  or  wife  is  a  competent  witness,  or  would 
be  if  living,  his  or  her  admissions  and  declarations  are  com- 
petent against  the  maker  of  them,  for  the  same  purposes  and 
within  the  same  limits  that  they  would  be  if  the  maker  were 
unmarried,55  with  this  exception,  that  those  of  the  wife  can- 
not be  received  to  prove  an  act  by  her  which  the  law  does 
not  authorize  a  married  woman  to  perform.  The  existence 
of  the  marital  relation  is  not  enough  to  make  admissions  or 


husband  are  competent  evidence. 
Burlington  Ins.  Co.  v.  Wzieck,  16 
111.  App.  295. 

54  Cook  v.  Burton,  5  Bush,  67. 

When  a  third  person  hears  a 
conversation  between  the  husband 
and  wife,  such  person  can  testify 
to  what  was  said,  if  the  testimony 
is  material  to  the  case  on  trial. 
Hampton  v.  State,  183  S.  W.  Rep. 
(Tex.  Civ.  App.)  887. 

An  employee  of  the  husband  of 
the  plaintiff  who  sued  the  adminis- 
trator of  her  spouse's  estate  is 
competent  to  testify  to  communi- 
cations between  the  plaintiff  and 
the  decedent.  Ginn  v.  Carithers, 
14  Ga.  A.  298,  80  S.  E.  Rep.. 
698. 

56  The  Pennsylvania  rule  ex- 
cludes the  declarations  of  either, 
when  offered  against  creditors,  to 
prove  title  out  of  the  declarant  and 
in  the  other;  if  they  might  have  the 
effect  to  bolster  up  a  fraudulent 
conveyance  (Parvin  v.  Capewell,  45 
Penn.  St.  89) ;  but  the  better  opin- 
ion is  that  they  are  competent, 
though  not  alone  sufficient  on 


such  an  issue.  Compare  Town- 
send  v.  Maynard,  45  Id.  200; 
Musser  v.  Gardner,  66  Id.  246. 

The  declarations  of  the  wife  act- 
ing as  agent  for  her  husband  are 
admissible  against  her.  Leyner  v. 
Leyner,  123  la.  185,  98  N.  W.  Rep. 
628. 

Where  an  action  is  brought 
against  both  husband  and  wife, 
the  declarations  of  the  husband 
are  admissible  against  himself  but 
not  against  his  wife.  Carpenter 
v.  Carpenter,  126  Mich.  217,  85 
N.  W.  Rep.  576. 

Where  the  husband  is  sued  for 
the  wife's  tort,  his  statements 
made  out  of  her  presence  and  after 
the  accident  are  admissible  against 
him.  Bruce  v.  Bombeck,  79  Mo, 
App.  231. 

In  an  action  against  husband 
and  wife  for  fraudulent  transfer 
of  property,  the  declarations  of 
each  made  out  of  the  presence  of 
the  other  are  admissible  to  prove 
fraudulent  purpose  of  each.  Co- 
burn  v.  Storer,  67  N.  H.  86,  36 
Atl.  Rep.  607. 


480 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


declarations  made  by  either  competent  against  the  other,56 
but  some  special  ground  for  admitting  them  must  be  shown, 
as  in  the  case  of  other  persons.  For  this  purpose  it  is  enough 
to  show  that  the  declarant  was  the  agent  of  the  other  in  the 
matter  involved,  and  acting  as  such  when  the  declaration 
was  made; 57  or  that  the  other  claims  as  the  representative 


56  Owen  v.  Cawley,  36  N.  Y.  600; 
Thomas  v.  Maddan,  50  Penn.  St. 
261,  265,  s.  P.,  Hanson  v.  Millett, 
55  Me.  190;  Livesley  v.  Lasalette, 
28  Wise.  41.  The  wife's  declara- 
tions in  her  husband's  absence, 
tending  to  charge  the  husband  with 
a  liability,  are  not  evidence  against 
him.  Rideout  v.  Knox,  148  Mass. 
368,  12  Am.  St.  Rep.  560,  19  N.  E. 
Rep.  390.  And  declarations  of  a 
husband,  make  in  the  absence  of 
his  wife,  tending  to  show  that  they 
were  partners,  are  not  competent, 
as  against  the  wife,  to  establish 
that  relation;  nor  can  a  witness  be 
permitted  to  testify  that  he  under- 
stood that  the  husband,  in  making 
such  declarations,  used  the  word 
"we"  as  including  his  wife.  Law- 
rence v.  Thompson,  26  App.  Div. 
(N.  Y.)  308. 

Where  the  wife  acquires  title  to 
land  by  adverse  possession  any 
declaration  of  the  husband  made 
after  such  title  is  perfected  will 
not  be  admissible  to  divest  the 
wife  thereof.  Lemmons  v.  Mc- 
Kinney,  162  Mo.  525,  63  S.  W. 
Rep.  92. 

Where  real  estate  is  owned  by 
the  wife,  statements  made  by  the 
husband  to  a  real  estate  broker  to 
the  effect  that  the  latter  is  to  re- 
ceive certain  commissions  are  not 
binding  upon  the  wife  unless  the 


husband  was  specially  authorized 
to  act  as  his  wife's  agent.  Winans 
v.  Demarest,  84  N.  Y.  Supp.  504. 

The  declarations  of  a  husband 
while  in  possession  of  personal  prop- 
erty to  the  effect  that  he  is  the 
owner  of  it  are  self-serving  decla- 
rations and  not  admissible  against 
the  wife  who  lays  claim  to  the 
property.  Vennillion  v.  Parsons, 
101  Mo.  App.  602,  73  S.  W.  Rep. 
994. 

Where  a  husband  is  sued  for 
necessaries  delivered  to  his  wife 
living  apart  from  her  husband,  de- 
livery cannot  be  proved  by  state- 
ments of  the  wife.  Meyer  v.  Jew- 
ell, 88  N.  Y.  Supp.  972. 

Notice  to  the  husband  of  a  de- 
fect in  a  title  which  his  wife  many 
years  later  purchases,  is  not  notice 
to  the  wife.  Pearce  v.  Smith,  126 
Ala.  116,  28  So.  Rep.  37. 

A  promise  made  to  a  husband  by 
a  third  person  for  the  benefit  of 
the  wife  can  be  enforced  by  the 
latter,  and  the  husband  can  be 
called  to  testify.  Buchanan  v.  Til- 
den,  158  N.  Y.  109,  52  N.  E.  Rep. 
724,  70  Am.  St.  Rep.  454,  44  L.  R. 
A.  170;  Bouton  v.  Welch,  170  X.  Y. 
554,  63  N.  E.  Rep.  539. 

87  Riley  v.  Suydam,  4  Barb.  222; 
Kelly  v.  Kelly,  2  E.  D.  Smith,  250; 
Rose.  N.  P.  75. 

Where  the  authority  of  the  hus- 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


481 


or  successor  of  the  declarant.58  In  the  case  of  silence  or  ac- 
quiescing admissions  by  the  wife,  in  the  face  of  her  husband's 
conduct  or  declarations,  the  influence  of  the  marital  relation 
must  be  presumed,  so  far  as  to  require  very  clear  proof  of 
her  free  assent,59  or  of  estoppel  in  favor  of  an  innocent  third 
person,60  in  order  to  give  any  weight  to  them;  and  the  weight 


band  to  act  as  agent  for  the  wife 
is  established,  his  declarations 
will  be  admitted.  Minard  v.  Still- 
man,  35  Ore.  259,  57  Pac.  Rep. 
1022. 

Statements  made  by  the  wife 
to  her  husband's  attorney  are 
not  privileged  where  the  husband 
waives  the  privilege.  Leyner  v. 
Leyner,  123  la.  185,  98  N.  W.  Rep. 
628. 

Statements  by  the  husband  act- 
ing as  agent  for  the  wife  made  to 
third  persons  are  not  admissible 
to  prove  her  insolvency  in  invol- 
untary bankruptcy  proceedings. 
Duncan  v.  Landis,  45  Cir.  Ct.  App. 
666,  106  Fed.  Rep.  839. 

Where  the  husband  acts  as  agent 
for  his  wife  who  is  the  tenant  of 
certain  premises,  his  statements 
to  the  landlord  that  the  latter 
had  not  the  right  to  collect  rent 
are  admissible  to  prove  possession 
of  the  wife.  Barker  v.  Mackay, 
175  Mass.  485,  56  N.  E.  Rep.  614. 

The  statements  of  the  husband 
acting  as  the  agent  of  the  wife  in 
regard  to  her  ownership  of  a  cer- 
tain lot  are  admissible  against  the 
wife.  Pearson  v.  Adams,  129  Ala. 
157,  29  So.  Rep.  977. 

The  declarations  of  a  husband 
in  possession  of  lands  as  the  agent 
of  his  wife  as  to  the  location  of  the 
boundaries  are  not  admissible. 


Perkins  v.  Brinkley,  133  N.  C.  348, 
45  S.  E.  Rep.  652. 

Where  a  husband  authorizes  his 
wife  to  answer  a  letter  directed  to 
him  in  any  way  she  pleases,  he 
stating  that  he  will  have  nothing 
to  do  with  the  matter,  her  answer 
is  admissible  in  evidence  as  against 
the  husband.  Harmon  v.  Leber- 
man,  39  Tex.  Civ.  App.  251,  87 
S.  W.  Rep.  203. 

"Day  v.  Wilder,  47  Vt.  584, 
593;  Smith  v.  Sergent,  2  Hun,  107. 

89  Rowell  v.  Klein,  44  Ind.  293. 

The  fact  that  the  wife  does  not 
deny  the  declarations  of  the  hus- 
band made  in  her  presence  that  he 
owns  certain  property  will  not  estop 
her  from  proving  her  ownership  of 
the  property.  Thomas  v.  Butler, 
24  Pa.  Super.  Ct.  305. 

60  See  Bodine  v.  Killeen,  53  N. 
Y.  96. 

The  silence  of  the  wife,  in  the 
face  of  her  husband's  unauthor- 
ized act  in  accepting  stock  instead 
of  money  in  payment  for  a  machine 
which  he  had  sold  as  her  agent, 
was  held  to  estop  her  where  she 
derived  benefit  by  reason  of  the 
fact  that  the  innocent  purchaser 
paid  a  chattel  mortgage  which  she 
had  previously  placed  upon  the 
machine.  Journal  Pub.  Co.  v. 
Barber,  165  N.  C.  478,  81  S.  E. 
Rep.  694. 


482, 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


of  her  admissions  or  declarations  is  generally  impaired  where 
there  is  not  ground  of  estoppel,  if  it  appears  that  they  may 
have  been  made  by  his  influence  or  for  his  benefit.61 

5.  Agency  of  One  for  the  Other. 

To  prove  an  agency  for  the  wife  in  a  matter  where  she  had 
not  power  to  act  at  common  law,  the  facts, — such  as  sep- 
arate estate, — on  which  her  power  under  the  statute  de- 
pends, must  be  proved.62  In  other  respects,  the  fact  of 
agency,  whether  of  one  for  the  other,  or  of  a  third  person 
for  either,  is  to  be  proved  in  the  same  manner  as  in  the  case 
of  other  persons.63  The  marital  relation  alone  raises  no  pre- 
sumption of  agency  between  them ;  but  its  existence  may  aid 
or  impair  the  significance  of  other  evidence  tending  to  show 
agency.  Thus,  when  the  agency  of  the  wife  is  alleged  against 
the  husband,  in  matters  of  a  domestic  nature,  slight  evidence 
of  actual  authority  is  enough; 64  while  if  his  agency  is  alleged 


61  Hollinshead  v.  Allen,  17  Penn. 
St.  275. 

A  wife  suing  her  husband's  par- 
ents for  alienation  of  her  husband's 
affections  cannot  prove  the  hos- 
tile attitude  of  the  defendants  by 
declarations  made  by  her  husband. 
Cochran  v.  Cochran,  196  N.  Y.  86, 
89  N.  E.  Rep.  470,  24  L.  R.  A.  N. 
S.  160,  17  Ann.  Gas.  782. 

62  Nash  v.  Mitchell,  3  Abb.  N. 
Gas.  171. 

63  See  Bodine  v.  Killeen,  53  N. 
Y.  96;  Dillaye  v.  Beer,  3  N.  Y. 
Supm.  Ct.  (T.  &  C.)  218. 

Agency  resting  in  parol  can  gen- 
erally be  proved  by  the  testimony 
of  either  the  principal  or  the  per- 
son who  claims  to  be  the  agent, 
and  the  foregoing  rule  is  not 
changed  when  the  purported  agent 
is  either  the  husband  or  wife  of 
the  principal.  State  Nat.  Bank 


v.  Scales,  159  Pac.  Rep.  (Okl.) 
925. 

It  cannot  be  presumed  from  the 
marital  relation  that  the  husband 
is  the  wife's  agent.  Bryan  v. 
Orient  Lumber  &  Coal  Co.,  156 
Pac.  Rep.  (Okl.)  897. 

64  Paragraph  21  below. 

The  mere  relation  of  husband 
and  wife  does  not  establish  the 
agency  of  one  for  the  other.  Mc- 
Nemar  v.  Cohn,  115  111.  App. 
31. 

Owing  to  the  intimate  relation 
of  husband  and  wife,  their  inter- 
ests and  duties  are  in  many  cases 
common,  and  where  these  exist, 
the  act  of  one  may  be  presumed  to 
be  the  act  of  the  other  upon  slight 
evidence,  and  this  is  particularly 
the  case  where  a  moral  or  legal 
duty  is  imposed  upon  the  husband 
to  do  what  his  wife  has  done. 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR  WIFE 


483 


against  her  to  divest  her  of  her  estate  without  consideration, 
the  existence  of  the  relation  is  a  reason  for  requiring  unusually 
strict  proof  of  authority.65  The  agency  cannot  be  proved 


French  v.  Spencer,  23  Pa.  Super. 
Ct.  428. 

In  order  to  prove  agency  it  is 
competent  to  show  that  the  al- 
leged agent  is  the  wife  of  the  prin- 
cipal, which,  while  not  conclusive, 
is  evidence  for  the  jury  to  consider. 
Brown  v.  Woodward,  75  Conn.  254, 
53  Atl.  Rep.  112. 

When  husband  and  wife  are 
living  together  and  the  wife  pur- 
chases articles  for  domestic  use, 
the  law  imputes  to  her  the  char- 
acter of  agent  of  her  husband. 
Feiner  v.  Boynton,  73  N.  J.  Law, 
136,  62  Atl.  Rep.  420. 

The  presumption  is  that  a  mar- 
ried woman  who  purchases  gro- 
ceries for  the  use  of  the  family, 
does  so  as  the  agent  of  her  hus- 
band. Bradt  v.  Shull,  46  N.  Y. 
App.  Div.  347,  61  N.  Y.  Supp.  484; 
Lindholm  v.  Kane,  92  Hun,  369, 
36  N.  Y.  Supp.  665;  Edwards  v. 
Woods,  131  N.  Y.  350,  30  N.  E. 
Rep.  237. 

Where  it  is  sought  to  hold  the 
husband  liable  for  goods  which 
are  not  necessaries  purchased  by 
the  wife,  an  express  authority  to 
pledge  his  credit  must  be  proved. 
McBride  v.  Adams,  84  N.  Y.  Supp. 
1060. 

Where  a  wife  deserts  her  hus- 
band there  is  no  presumption  that 
she  has  any  authority  to  bind  his 
credit  for  the  purchase  of  neces- 
saries; the  burden  of  proof  is  on 
the  one  supplying  her  to  show  that 
the  husband  and  wife  were  sep- 


arated either  by  mutual  consent 
or  through  fault  or  misconduct  of 
the  husband  before  any  recovery 
can  be  had.  Peaks  v.  Mayhew,  94 
Me.  571,  48  Atl.  Rep.  172. 

65  Hoffman  v.  Treadwell,  2  Supm. 
Ct.  (T.  &  C.)  57.  See  also  Schouler 
Dom.  Rel.  99,  2  Bish.  Mar.  W., 
§§  396,  407,  411;  Bank  of  Albion  v. 
Burns,  46  N.  Y.  170. 

Something  more  than  the  mere 
marriage  relation  must  be  shown 
in  order  to  establish  the  authority 
of  the  husband  to  manage  his  wife's 
separate  property.  Wagoner  v. 
Silva,  139  Cal.  559,  73  Pac.  Rep. 
433. 

The  mere  fact  that  the  husband 
cultivates  and  farms  upon  lands 
belonging  to  his  wife  is  no  evidence 
that  he  is  her  agent.  Wagner  v. 
Robinson,  56  Ga.  147. 

The  burden  of  proof  is  upon  the 
plaintiff  in  an  action  against  hus- 
band and  wife  to  show  the  agency 
of  the  husband.  Sanders  v.  Brown, 
145  Ala.  665,  39  So.  Rep. 
732. 

No  presumption  arises  by  reason 
of  the  marriage  relation  that  the 
husband  is  agent  for  his  wife. 
Francis  v.  Reeves,  137  N.  C.  269, 
49  S.  E.  Rep.  213. 

A  husband  is  competent  to  tes- 
tify ot  establish  his  agency  for  his 
wife.  Long  v.  Martin,  152  Mo. 
668,  54  S.  W.  Rep.  473. 

Earlier  decisions  in  Missouri 
hold  to  the  contrary:  Williams  v. 
Williams,  67  Mo.  661;  Wheeler, 


484 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


by  the  admissions  or  declarations  of  the  one  alleged  to  be 
agent.66  In  respect  to  the  effect  of  notice  to  either,  as  bind- 
ing the  other,  the  fact  that  the  one  was  agent  for  the  other 
must  first  be  shown;  and  then  the  rule  well  settled  in  the  law 
of  agency,  applies.67 

6.  Estoppel. 

In  respect  to  all  matters  within  the  limits  and  to  the  extent 
to  which  the  law  has  conferred  capacity  on  the  married 
woman,  she  will  be  held,  in  favor  of  third  persons,  to  be 
liable  to  the  same  equitable  estoppels,  and  the  same  presump- 
tions, and  chargeable  by  the  same  indirect  evidence  of  au- 
thority conferred  on  her  husband  or  other  agents,  or  by  the 
same  apparent  holding  out  of  him  or  them  as  authorized, 
as  a  feme  sole.68  But  her  silence  or  concessions,  apparently 


etc.,  Mfg.  Co.  v.  Tinsley,  75  Mo. 
458. 

In  order  to  establish  the  hus- 
band's agency  for  the  wife  it  is  not 
enough  to  show  that  she  owned  the 
land  and  that  she  knew  that  the 
work  was  in  progress  and  did  not 
object  to  it.  A  husband  is  not 
prohibited  from  improving  the 
lands  of  his  wife  upon  his  own 
credit  or  with  his  own  money; 
the  relationship  would  afford  just 
reason  for  her  belief  that  he  is 
conferring  a  benefit  upon  his  own 
charge.  Jones  v.  Walker,  63  N.  Y. 
612;  Snyder  v.  Sloane,  65  N.  Y. 
App.  Div.  543,  72  N.  Y.  Supp. 
981. 

66  Deck  v.  Johnson,  1  Abb.  Ct. 
App.  Dec.  497. 

The  agency  of  the  husband  for 
the  wife  cannot  be  proved  by  the 
marital  relation  nor  by  the  declara- 
tions of  the  husband.  McNemar  v. 
Cohn,  115  111.  App.  31;  Shessler  v. 


Patton,  114  N.  Y.  App.  Div.  846, 
100  N.  Y.  Supp.  286. 

67  Adams  v.  Mills,  60  N.  Y.  539; 
R.  R.  Co.  v.  Brooks,  81  111.  293; 
Pringle  v.  Dunn,  37  Wise.  468. 

Where  the  husband  is  the  dual 
agent  between  his  wife  and  a  busi- 
iness  concern,  each  principal  know- 
ing he  was  the  agent  of  the  other, 
notice  to  him  is  notice  to  both 
principals  and  both  are  bound  by  it. 
Graham  Paper  Co.  v.  St.  Joseph 
Times  Printing,  etc.,  Co.,  79  Mo. 
App.  504. 

Where  the  husband  acts  as  agent 
for  his  wife  in  purchasing  lands 
and  he  knows  of  a  fraud  in  con- 
nection with  the  transaction,  she 
will  be  charged  with  notice  of 
the  fraud.  Tate  v.  Tate,  10  Ohio 
Cir.  Dec.  321,  19  Ohio  Civ.  Ct. 
Rep.  532. 

*  Bodine  v.  Killeen,  53  N.  Y.  96; 
Anderson  v.  Mather,  44  N.  Y.  249, 
262.  Compare  McGregor  v.  Sib- 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


485 


prompted  by  the  spirit  of  forbearance  and  acquiescence  which 
a  wife  should  foster  toward  her  husband,  and  thus  explained 
by  her  marital  duty,  do  not  bind  her  as  an  estoppel  in  his 
favor  or  in  favor  of  his  creditors,  unless  fraud  or  bad  faith 
on  her  part  is  shown.69  On  the  other  hand,  her  conduct  or 


ley,  69  Penn.  St.  388;  Morris  r. 
Ziegler,  71  Penn.  St.  450.  And  see 
2  Bish.  Mar.  W.,  §  488;  Carpenter 
v.  Carpenter,  25  N.  J.  Eq.  194. 

The  disabilities  of  married 
women  having  been  removed  by 
statute  they  are  subject  to  the 
rule  of  estoppel.  Brusha  v.  Board 
of  Education,  41  Okl.  595,  139  Pac. 
Rep.  298,  L.  R.  A.  1916,  C.  233. 

The  statutes  emancipating  mar- 
ried women  from  the  disabilities 
of  coverture  impose  the  burden  of 
estoppel.  Brooks  v.  Laurent,  39 
Cir.  Ct.  App.  201,  98  Fed.  Rep. 
647. 

Where  the  husband  uses  his 
wife's  money  to  pay  his  own  debts 
and  subsequently  she  ratifies  his 
act  in  so  doing,  she  is  estopped 
from  recovering  the  money  from 
his  creditors.  Hollingsworth  v. 
Hill,  116  Ala.  184,  22  So.  Rep.  460. 

While  the  wife  may  not  become 
the  husband's  surety,  and  may  not 
pledge  her  property  to  secure  his 
indebtedness,  and  her  property 
cannot  be  taken  for  his  debts, 
nevertheless  she  may,  of  her  own 
volition  apply  it  to  the  absolute 
payment  of  his  debts  and  having 
done  so  is  estopped  from  recovering 
the  money.  Gadsden  First  Na- 
tional Bk.  v.  Moragne,  128  Ala.  157, 
30  So.  Rep.  628. 

Where  husband  and  wife  exe- 
cute a  mortgage  on  land  belonging 


to  the  wife,  she  will  be  estopped 
from  denying  the  validity  of  the 
mortgage.  Till  v.  Collier,  27  Ind. 
App.  333,  61  N.  E.  Rep.  203. 

Where  a  married  woman  borrows 
money  to  be  used  in  a  partnership 
business  of  which  she  and  her  hus- 
band are  members  she  will  be  es- 
topped from  setting  up  the  defense 
of  suretyship.  Anderson  v.  Citi- 
zens' National  Bk.,  38  Ind.  App. 
190,  76  N.  E.  Rep.  811. 

Inasmuch  as  the  wife  can  con- 
tract as  a  feme  sole  only  with  re- 
spect to  personalty,  the  doctrine 
of  estoppel  applies  only  to  person- 
alty and  not  to  lands  owned  by 
her,  her  sole  deed  to  lands  being 
void.  Williamson  v.  Jones,  43 
W.  Va.  562,  27  S.  E.  Rep.  411,  38 
L.  R.  A.  694,  64  Am.  St.  Rep.  891. 

69  Bank  of  U.  S.  v.  Lee,  13  Pet. 
118;  Sexton  v.  Wheaton,  8  Wheat. 
238. 

The  wife  may  be  estopped,  as 
to  others  than  her  husband,  by 
her  conduct  in  letting  him  handle 
her  property  as  though  his  own. 
Stone  v.  Gilliam  Exchange  Bk.,  81 
Mo.  App.  9. 

A  wife,  whose  property  is  bound 
for  the  note  of  the  husband,  will 
not  be  estopped  by  his  represen- 
tations to  an  innocent  purchaser 
that  the  notes  were  good  and  valid 
and  that  there  was  no  defense  to 
them.  Henry  v.  Sneed,  99  Mo. 


486 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


silence  under  incapacity,  without  actual  fraud,  cannot  raise 
an  estoppel  which  will  avail  in  the  place  of  capacity  when 
it  did  not  exist  by  the  law.70 

7.  Judgments. 

At  common  law,  and  apart  from  the  statutes  conferring 
capacity  upon  married  women,  a  judgment  at  law  against  a 
married  woman  whose  husband  was  not  a  party  with  her, 
is  not,  in  general,  binding  upon  her; 71  and  a  decree  in  equity 
in  a  suit  brought  by  both  as  to  her  separate  estate,72  or  in 
which  their  interests  were  in  conflict,73  is  not  conclusive 


407,  12  S.  W.  Rep.  663,  17  Am. 
St.  Rep.  580. 

A  wife's  separate  estate  will  not 
be  charged  with  her  husband's 
debt  merely  because  she  stood 
by  in  silence  while  her  husband 
represented  himself  to  be  the 
owner  of  such  estate  as  an  induce- 
ment to  the  creditor  to  give  the 
credit,  and  by  such  representation 
deceived  the  creditor.  Carpenter 
v.  Carpenter's  Ex'rs,  27  N.  J. 
Eq.  502. 

70  Big.  on  Estop.  444-446,  4 
Central  L.  J.  507,  579. 

A  married  woman  cannot  lose 
her  land,  separate  or  not  separate 
estate,  by  estoppel  by  conduct  (in 
pais)  without  actual  fraud,  if 
even  by  it.  Waldron  v.  Harvey, 
54  W.  Va.  608,  46  S.  E.  Rep.  603, 
102  Am.  St.  Rep.  959;  Yock  v. 
Mann,  57  W.  Va.  187, 49  S.  E.  Rep. 
1019. 

A  married  woman  is  not  es- 
topped by  the  acts  or  representa- 
tions of  her  husband;  nor  can  she 
be  estopped  unless  she  is  guilty  of 
some  act  of  fraud.  Cauble  v. 
Worsham,  96  Tex.  86,  70  S.  W. 


Rep.  737,  97  Am.  St.  Rep.  871; 
Marie  v.  Texas  Southern  Ry.  Co.,  39 
Tex.  Civ.  App.  43,  86  S.  W.  Rep. 
1048. 

The  active  participation  of  a 
married  woman  in  the  perpetra- 
tion of  a  fraud  may  operate,  by 
way  of  estoppel,  to  divest  her  of 
interest  in  real  estate.  Floyd  v. 
Mackey,  112  Ky.  646,  23  Ky.  Law 
Rep.  2030,  66  S.  W.  Rep.  518. 

Where  a  wife  is  aware  that  her 
husband  is  negotiating  to  sell  her 
property  without  her  authority, 
it  is  her  duty  to  disavow  his  acts. 
Journal  Pub.  Co.  v.  Barber,  165 
N.  C.  478,  81  S.  E.  Rep.  694. 

71  Bigelow  on  Estop.  48;  Freem. 
on  Judg.,  §  150,  and  cases  cited. 

If  plaintiff  wants  to  reach  the 
separate  estate  of  a  married  woman 
he  must  designate  such  estate  in 
the  proceedings.  Flanagan  v. 
Oliver  Finnic  Grocery  Co.,  98 
Tenn.  599,  40  S.  W.  Rep.  1079. 

72  Stuart  v.  Kissam,  2  Barb.  493; 
Michan  v.  Wyatt,  21  Ala.  N.  S. 
813,  833. 

73  Alston  v.  Jones,  3  Barb.  Ch. 
397. 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


487 


against  her.  Under  the  modern  statutes,  a  judgment  against 
a  married  woman  is  competent  and  conclusive  against  her 
and  those  claiming  under  her,  in  the  same  cases  and  to  the 
same  extent  that  it  would  be  against  a  feme  sole,  provided 
the  case  be  one  in  which  she  might  have  capacity  under  the 
statute.74 


8.  Evidence  of  Husband's  Title. 

Evidence  that  the  husband,75  or  husband  and  wife  to- 
gether,76 or  the  wife,77  were  in  possession  of  property,  with- 


74  Freem.  on  Judg.,  §  150.    Con- 
tra, Swayne  v.  Lyon,  67  Penn.  St. 
439. 

It  is  not  necessary  that  a  judg- 
ment against  the  wife  should  state 
in  specific  terms  that  her  separate 
property  is  subject  to  the  payment 
of  the  same.  Smith  v.  Ridley,  30 
Tex.  Civ.  App.  158,  70  S.  W.  Rep. 
235. 

A  personal  judgment  can  be 
recovered  against  both  husband  and 
wife  on  a  note  given  for  a  com- 
munity debt,  and  on  such  judg- 
ment the  community  property  of 
both,  and  the  separate  property 
of  either  can  be  taken  in  execu- 
tion. Lumbermen's  National  Bk. 
r.  Gross,  37  Wash.  18,  79  Pac.  Rep. 
470. 

It  is  no  defense  for  the  wife  in 
an  action  against  her  and  her 
husband  to  set  up  that  she  signed 
merely  to  release  her  dower.  Wood 
r.  Dunham,  105  Iowa,  701,  75 
X.  W.  Rep.  507. 

75  Keeney  v.  Good,  21  Penn.  St. 
354. 

The  rule  of  the  text  is  not  up- 
held in  all  states.  21  Cyc.  1403; 
and  see  also  Dyment  v.  Nelson, 


166  Cal.  38,  134  Pac.  Rep.  988, 
holding  that  where  a  yacht  was 
purchased  with  the  wife's  funds, 
although  the  husband  had  posses- 
sion and  the  registry  of  the  vessel 
was  taken  out  in  his  name,  it  was 
nevertheless  her  separate  property. 

"Turner  v.  Brown,  6  Hun,  331. 

If  the  husband  invests  his  money 
in  securities  in  the  joint  names  of 
himself  and  his  wife,  they  will  be- 
long to  the  wife  on  the  death  of 
the  husband  if  there  is  no  evidence 
to  the  contrary.  Matter  of  Rapelje, 
66  N.  Y.  Misc.  414, 123  N.  Y.  Supp. 
287. 

Conveyance  to  husband  and 
wife  makes  them  tenants  by  the 
entirety,  and  the  whole  fee  passes 
to  the  survivor.  Bertles  v.  Unnam, 
92  N.  Y.  152;  Goodrich  v.  Otego, 
160  N.  Y.  App.  Div.  349, 145  N.  Y. 
Supp.  497;  McWhorter  v.  Green, 
111  Ark.  1,  162  S.  W.  Rep.  1100; 
English  v.  English,  66  Fla.  427,  63 
So.  Rep.  822;  Bartkowaik  v.  Samp- 
son, 73  N.  Y.  Misc.  446,  133  N.  Y. 
Supp.  401;  Lerbs  v.  Lerbs,  71  N.  Y. 
Misc.  51,  129  N.  Y.  Supp.  903. 

"  Black  v.  Nease,37  Penn.  St.  436. 

"The  general  rule  of  law  is  that 


488 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


out  other  indication  of  ownership,  is  presumptive,  but  not 
conclusive,78  evidence  of  title  in  the  husband.  Evidence 
that  the  property  in  question  was  purchased  by  her  on  her 
own  credit,  when  she  had  no  separate  estate  or  other  capacity 
to  contract,  is  evidence  of  title  in  him.79  And  her  purchase  of 


the  possession  of  personal  prop- 
erty is  prima  facie  evidence  of  own- 
ership, but  a  like  presumption  is 
not  indulged  in  favor  of  the  pos- 
session of  a  married  woman.  At 
common  law  the  possession  of  a 
wife  was  the  possession  of  the  hus- 
band." McClain  v.  Abshire,  63 
Mo.  App.  333,  339,  cited  in  Mc- 
Kenzie  Carpet  Co.  ».  Leffler,  192 
Mo.  App.  608,  184  S.  W.  Rep.  905, 
in  which  latter  case  it  was  held 
that,  conceding  the  above  quota- 
tion to  express  good  law,  the  pre- 
sumption did  not  obtain  in  the 
case  of  a  married  woman  living 
apart  from  her  husband,  though 
not  divorced. 

"The  general  rule  must  be  held 
to  be,  that  whether  the  possession 
be  physically  in  the  husband,  or 
in  the  wife,  the  title  is  presump- 
tively in  the  husband."  Burns 
v.  Bangert,  16  Mo.  App.  22,  35, 
cited  in  McKenzie  Carpet  Co.  v. 
Leffler,  192  Mo.  App.  608,  184  S. 
W.  Rep.  905. 

78  See  paragraph  16  (below). 
See  also  Schouler's  Dom.  Rel.  214, 
2  Bish.  Mar.  W.,  §§  128-140,  1  Id., 
§732. 

Where  a  married  woman  turns 
all  her  funds  over  to  her  husband 
and  never  asks  for  an  accounting, 
and  he  treats  the  money  as  his 
own,  depositing  it  in  a  bank  ac- 
count together  with  money  of  his 


own,  it  must  be  regarded  as  to  all 
intents  and  purposes  as  his  own  ac- 
count. Green  v.  Griswold,  2  N.  Y. 
Supp.  624. 

Possession  of  land  by  both  hus- 
band and  wife  raises  a  presumption 
of  title  in  the  husband.  Coursey 
v.  Coursey,  141  Ga.  65,  80  S.  E. 
Rep.  462. 

Under  Civ.  Code,  §  164,  there  is 
a  presumption  that  a  conveyance 
to  husband  and  wife  makes  them 
tenants  in  common  which  may  be 
rebutted  by  other  evidence.  Vol- 
quards  v.  Myers,  23  Cal.  App.  500, 
138  Pac.  Rep.  963. 

There  is  a  presumption  that 
property  acquired  by  either  spouse 
during  coverture  is  community 
property,  which  may  be  rebutted. 
In  re  Deschamp,  77  Wash.  514, 
137  Pac.  Rep.  1009;  Gameson  r. 
Gameson,  162  S.  W.  Rep.  (Tex. 
Civ.  App.)  1169;  Lenninger  v. 
Lenninger,  167  Cal.  297,  139  Pac. 
Rep.  679. 

79  Glann  v.  Younglove,  27  Barb. 
480. 

But  it  has  been  decided  that 
little  if  any  importance  should 
attach  to  the  presumption  that 
property  purchased  by  a  wife  dur- 
ing coverture  was  with  the  hus- 
band's funds.  Regal  Realty  &  In- 
vestment Co.  v.  Gallagher,  188  S. 
W.  Rep.  (Mo.)  151. 


ACTIONS    BY    OR    AGAINST   HUSBAND    OR   WIFE 


489 


articles  for  family  use,  partly  with  her  own  money  and 
partly  with  his,  tends,  in  the  absence  of  anything  indicating 
a  different  intent,  to  prove  title  in  him.80  But  after  it  has 
been  shown  either  that  he  received  property  to  his  wife's 
use,  or  that  she  had  title  to  property  in  the  possession  of 
either  or  both,  or  that  it  was  in  her  possession  in  a  separate 
business  belonging  to  her  under  the  statute,81  the  burden 
is  on  those  who  claim  it  to  be  his  to  show  his  title.  If  the 
fund  is  the  proceeds  of  her  estate,  it  is  hers,  even  as  against 
his  creditors,  although  realized  by  his  labor  as  her  servant 
upon  her  farm,82  or  in  her  business,83  or  his  skill  or  ability  as 
her  agent  hi  the  purchase  and  resale  of  her  property.84 


80  Kelly  v.  Drew,  12  Allen,  107. 

81  Peters  v.  Fowler,  41  Barb.  467. 

82  Vrooman  v.  Griffiths,  4  Abb. 
Ct.  App.  Dec.  505.     As  to  what 
proves  him  a  tenant  under  her,  and 
what  her  servant,  compare  Albin 
v.  Lord,  39  N.  H.  205,  and  Hill  v. 
Chambers,  30  Mich.  422. 

Where  the  debt  of  a  creditor 
against  the  husband  arose  subse- 
quent to  the  purchase  of  land  in 
the  name  of  the  wife,  the  burden 
of  proof  is  upon  the  creditor  to 
show  that  the  husband  paid  the 
consideration  of  the  deed  to  such 
land.  Jones  v.  Nolen,  133  Ala. 
567,  31  So.  Rep.  945. 

83  Kleunder  v.  Lynch,  2  Id.  538. 
The  proceeds  of  a  wife's  estate 

obtained  by  the  husband's  busi- 
ness acumen  and  industry  in  man- 
aging the  property  was  held  sub- 
ject to  his  debts  in  Patton  v. 
Smith,  130  Ky.  819, 114  S.  W.  Rep. 
315,  23  L.  R.  A.  N.  S.  1124.  How- 
ever in  the  notes  under  this  case  in 
23  L.  R.  A.  N.  S.  1124,  it  is  stated 
that  "the  preponderance  of  au- 
thority is  against  Patton  &  Smith," 


citing  among  other  cases  Mager- 
stadt  v.  Schaefer,  213  111.  351, 
72  N.  E.  Rep.  1063,  wherein  it 
was  stated — "We  have  frequently 
held  under  our  Married  Woman's 
Act  a  wife  may  own  property  and 
allow  her  husband  to  act  as  her 
agent  in  transacting  business  grow- 
ing out  of  such  property,  (in  this 
case  holding  stock  in  a  corporation 
receiving  the  dividends  therefrom 
and  participating  in  the  manage- 
ment of  the  corporation  as  a  di- 
rector), such  as  procuring  and 
transferring  the  same,  without 
subjecting  it  to  the  payment  of 
his  debts." 

84  Merchant  v.  Bunnell,  3  Id. 
280. 

"A  debtor  may  rightfully  give 
his  services,  however  valuable,  to 
his  wife,  and  his  creditors  cannot 
complain  of  his  so  doing.'  .  .  . 
Starting  with  her  own  money,  the 
wife  might  rightfully  avail  herself 
of  the  services  of  her  husband  and 
his  business  acumen  in  the  man- 
agement of  her  property  to  the 
betterment  of  her  holdings." 


490  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

It  being  shown  that  title  to  property  was  in  either  the  wife 
or  the  husband,  no  presumption  of  a  transfer  of  the  title  to 
the  other  can  be  drawn  from  the  mere  fact  of  possession  by 
the  other;  the  burden  of  proof  is  on  the  one  who  asserts  a 
change,  to  give  some  evidence  beyond  the  mere  possession.85 
The  intimacy  of  the  relation  is  such,  and  acting  as  agent  for 
each  other  so  habitual,  that  the  possession  by  one  of  the 
movables  of  another  is  very  slight,  if  any,  evidence  of  a  gift 
'or  transfer,  and  not  enough  to  transfer  the  burden  of  proof.86 

The  fact  that  they  joined  in  conveying  does  not  raise  a 
presumption  that  he  was  the  sole  owner,  but  rather  that  they 
were  equal  owners  in  common.87 

9.  Evidence  of  Wife's  Title. 

The  wife's  separate  property  rights  are  still  regarded  as 
exceptional, — that  is  to  say,  the  law  requires  her  in  each  case 
to  rebut  the  presumption  that  whatever  she  acquires  belongs 
to  her  husband,  or  is  subject  to  his  control;88  and  this  is 

Heckinger  v.  Swank,  78  Or.  526,  in  which,  on  her  death,  were  found 

153  Pac.  Rep.  784.  bonds   which    originally    belonged 

85  Wells   Sep.   Prop,   of   M.   W.  to  the  husband,  it  was  held  that 
224-226,  and  cases  cited.  the  fact  that  they  were  contained 

"Thus  he  who  claims  property  in  an  envelope  indorsed  in  the 
as  a  gift  from  another  must  show  husband's  handwriting  as  her  prop- 
clearly  and  satisfactorily  that  the  erty  was  insufficient  evidence  of 
donor  intended  to  give,  that  the  itself  to  show  a  gift  from  him  to 
intention  existed  at  the  time  the  his  wife.  Matter  of  Squibb,  95 
gift  was  made,  and  that  it  was  Misc.  (N.  Y.)  475,  160  N.  Y.  Supp. 
consummated  by  an  actual  deliv-  826. 

ery.    Mere  possession  will  not  suf-  87  Cox  v.  James,  45  N.  Y.  557, 

fice.  ...     On   the   claimant   de-  affi'g  59  Barb.  144. 

volves  the  burden  of  establishing  88  Schouler  Dom.  R.,  2d  ed.  16, 

by  competent  proof  these  essen-  2  Bish.  Mar.  W.,  §  82,  &c. 

tial    elements    of    a    valid    gift."  Unless   a   wife   can   show   that 

McKimmie  v.  Postlethwait,  88  S.  lands  owned  by  her  were  a  gift  or 

E.  Rep.  (W.  Va.)  833.  that  they  were  paid  for  out  of  her 

86  Bachman  v.  Killinger,  55  Penn.  separate    estate,    it    will    be    pre- 
St.  418,  1  Bish.  Mar.  W.,  §  732.  sumed  that  any  interest  which  she 

When  a  husband  and  wife  to-  has  in  them  is  the  interest  of  the 
gether  rented  a  safe  deposit  box  husband  and  subject  to  seizure  and 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


491 


to  be  done  by  establishing  the  facts  necessary,  to  bring  her 
case  either  within  the  enabling  statutes,  or  within  the  com- 
mon law  or  equity  rules  recognizing  a  married  woman's 
right.  She  must  give  some  evidence  of  her  title,  besides  pos- 
session under  the  marital  relation;  for  the  mere  fact  of  the 
wife's  possession  and  control  of  property,  if  consistent  with 
their  common  interest  hi  and  enjoyment  of  it.  as  the  hus- 
band's property,  is  no  evidence  of  title  in  her,  but  is  pre- 
sumptive evidence  of  his  possession.89  This  presumption, 


sale  by  his  creditors.  Jack  v. 
Kintz,  177  Pa.  571,  35  A.  Rep. 
867;  Hunter  ».  Baxter,  210  Pa.  St. 
72,  59  Atl.  Rep.  429. 

In  the  absence  of  any  pleading 
or  proof  that  the  wife  paid  for  the 
land  out  of  her  own  means  it  is 
presumed  in  law  that  having  been 
purchased  during  coverture  it  was 
paid  for  with  the  money  of  her 
husband.  Seitz  v.  Mitchell,  94  U. 
S.  580,  24  L.  ed.  179;  Halstead  v. 
Mustion,  166  Mo.  488,  66  S.  W. 
Rep.  258. 

Where  the  wife  acquires  prop- 
erty by  virtue  of  a  conveyance 
executed  after  the  death  of  the 
husband  and  purporting  to  be 
made  upon  an  onerous  considera- 
tion paid  by  her,  there  is  no  pre- 
sumption that  it  was  purchased 
with  her  separate  means.  Clark 
v.  Clark,  21  Tex.  Civ.  App.  371, 
51  S.  W.  Rep.  337. 

Where  board  is  furnished  in  a 
household  it  will  be  presumed,  in 
the  absence  of  any  agreement  or 
understanding  to  the  contary,  that 
the  head  of  the  household — the  hus- 
band— furnished  it  and  is  entitled 
to  compensation  therefor.  Cory  v. 
Cook,  24  R.  I.  421,  53  Atl.  Rep.  315. 


The  presumption  that  property 
obtained  by  the  wife  during  cov- 
erture was  paid  for  with  the  means 
of  the  husband  is  fully  rebutted 
when  the  transaction  consists  as 
well  with  honesty  as  with  fraud, 
for  then  it  will  be  presumed  hon- 
est. Gruner  v.  Scholz,  154  Mo. 
415,  55  S.  W.  Rep.  441. 

Under  the  enabling  statutes 
(Laws  of  1860,  c.  90,  §  2  and  Laws 
of  1884,  c.  381,  §  1)  enlarging  the 
rights  of  married  women,  a 
woman  who  works  as  a  nurse  for  a 
third  person  is  entitled  to  the 
money  earned  on  her  sole  and  sep- 
arate account.  Stevens  v.  Cunning- 
ham, 181  N.  Y.  454,  74  N.  E.  Rep. 
434,  rev'g  75  App.  Div.  125,  77 
N.  Y.  Supp.  364. 

In  Louisiana  the  fact  that  the 
title  to  land  is  taken  in  the  wife's 
name,  and  that  it  was  paid  for  out 
of  her  earnings  for  personal  serv- 
ices rendered  after  marriage,  does 
not  take  it  out  of  the  category  of 
community  property,  there  being 
no  separation  of  property.  Knight 
v.  Kaufman,  105  La.  Ann,  35,  29 
So.  Rep.  711. 

*»  Farrell  v.  Patterson,  43  111.  52, 
59;  Johnson  v.  Johnson,  72  Id.  491. 


492 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


however,  may  be  rebutted  by  his  admissions  that  it  be- 
longed to  her,  or  by  his  silence  hi  the  presence  of  her  declara- 
tions of  ownership.90  She  may  even  prove  title  by  adverse 
possession,  against  a  third  person,  although  her  husband 
lived  with  her,  if  he  claimed  no  independent  exclusive  oc- 
cupation in  himself.91  A  deed  containing  the  maiden  name  as 
that  of  the  grantee  may  be  shown  to  be  to  her,  by  parol  evi- 
dence that  she  was  the  person  to  whom  the  grant  was 
made,  and  was  known  to  the  grantor  by  that  name,  and 
that  no  other  person  claiming  the  name  claims  title  under 


Where  both  are  domiciled  on  her 
estate,  it  has  been  held  that  he  is 
not  presumptively  responsible  for 
the  control  of  the  premises  in  re- 
spect to  negligent  condition.  Fiske 
v.  Bailey,  51  N.  Y.  150;  but  is  in 
respect  to  illegal  use.  Common- 
wealth v.  Carroll,  5  Reporter, 
699. 

Where  a  materialman  furnishes 
lumber  to  improve  land  the  record 
title  of  which  is  in  the  community, 
the  burden  of  proof  is  on  the  wife 
in  an  action  by  the  materialman, 
to  establish  that  the  land  was  her 
separate  property  and  that  the 
plaintiff  had  notice  of  it.  Hord 
v.  Owens,  20  Tex.  Civ.  App.  21, 
48  S.  W.  Rep.  200. 

The  law  does  not  presume  the 
existence  of  a  separate  estate  in 
the  wife.  The  onus  of  establishing 
it  is  on  her  when  the  contest  is  be- 
tween herself  and  her  husband's 
creditors,  and  he  is  in  apparent 
possession  of  the  property.  Eaven- 
son  T.  Pownall,  182  Pa.  St.  587, 
38  Atl.  Rep.  470. 

In  a  contest  between  a  wife  and 
a  creditor  of  her  husband  as  to  the 
ownership  of  property  found  in 


the  possession  of  the  husband,  it 
is  competent  to  show  the  circum- 
stances and  income  of  the  husband. 
The  burden  is  upon  the  wife  to 
show  title  in  herself.  Quigley  v. 
Swank,  11  Pa.  Super.  Ct.  602. 

In  a  contest  between  a  wife  and 
the  creditors  of  her  husband  she 
must  show  by  clear  proof  that  she 
paid  for  the  property  out  of  her 
separate  estate,  and  if  such  proof 
is  wanting,  the  presumption  is 
that  her  husband  furnished  the 
money  to  pay  for  it.  Harr  v. 
Shaffer,  52  W.  Va.  207,  43  S.  E. 
Rep.  89. 

M  Turner  v.  Brown,  6  Hun, 
331. 

91  Clark  v.  Gilbert,  39  Conn.  94. 
In  an  action  by  a  widow,  who  had 
joined  with  her  husband  in  a  deed 
of  his  real  estate,  brought  against 
the  grantee  to  amend  the  deed  on 
the  ground  of  fraud,  so  far  as  it  af- 
fected her  right  of  dower,  it  was 
held  that  the  defendant  derived  his 
title  "through,  from  and  under," 
the  husband  within  the  meaning  of 
section  829  of  the  Code  of  Civil 
Procedure;  and. that  plaintiff  was 
not  a  competent  witness  as  to  per- 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR  WIFE 


493 


the  deed.92  If  a  deed  to  a  married  woman  fails  to  express 
that  it  is  to  her  separate  use,  extrinsic  evidence  of  the  in- 
tent is  competent,93  unless  the  statute  of  the  State  requires 
directions  in  the  instrument,  or  only  extends  to  property 
conveyed  to  her  separate  use.94  Evidence  that  the  property 
came  to  her  from  a  third  person,  or  a  bill  of  sale  running  to 
her  individually,  is  prima  facie  sufficient  to  go  to  the  jury.95 
On  the  question  whether  a  purchase  made  in  her  name  was 
upon  a  consideration  paid  by  her,  evidence  of  her  lack  of 
means  is  competent  against  her; 96  but  evidence  that  he  had 
means  is  not  sufficient,  as  against  his  creditors  at  least, 
without  evidence  tending  to  show  that  the  purchase  was 


sonal  transactions  with  the  dece- 
dent." Witthaus  v.  Schack,  105 
N.  Y.  332,  11  N.  E.  Rep.  649. 

In  Hitt  v.  Carr,  109  N.  E.  Rep. 
(Ind.  App.)  456,  the  court  decided 
that  a  married  woman  was  not  pre- 
cluded from  acquiring  land  by  ad- 
verse possession,  and  her  marital 
relation  could  only  be  considered  on 
the  question  of  her  claim  of  own- 
ership. 

"Scanlan  v.  Wright,  13  Pick. 
523,  530. 

93  But  not  necessary  if  the  con- 
veyance was  by  a  stranger.  Mc- 
Vey  v.  Green  Bay,  etc.,  R.  R.  Co., 
42  Wise.  532. 

Under  the  California  Code  it 
was  held  that  a  deed  to  a  wife 
raised  the  presumption  that  title 
was  thereby  vested  in  her  as  her 
separate  estate,  though  such  pre- 
sumption could  be  overthrown  by 
proof  that  the  property  conveyed 
was  in  fact  intended  to  be  held  as 
.community  property.  Thompson 
v.  Davis,  172  Cal.  491,  157  Pac. 
Rep.  595. 

"2  Bish.   Mar.   W.,   §92,   and 


unless  she  is  estopped.  Id.,  §  104. 
Compare  Hayt  v.  Parks,  39  Ct. 
357. 

In  California  all  presumptions 
are  in  favor  of  conveyances  to  the 
wife.  They  are  presumed  to  have 
been  made  for  a  consideration  paid 
by  the  wife,  or  if  it  is  conceded  that 
the  consideration  was  paid  by  the 
husband,  it  will  be  presumed  that 
the  property  was  intended  as  a 
gift  to  the  wife  as  her  separate 
property.  The  law  will  not  allow 
idle  presumptions  to  be  indulged 
in  as  against  a  deed  delivered  and 
recorded.  Alferitz  v.  Arrivillaga, 
143  Cal.  646,  77  Pac.  Rep.  657. 

95  Wasserman  v.  Willett,  10  Abb. 
Pr.  63. 

96  Block  v.  Melville,  10  La.  Ann. 
784. 

Where  a  husband  buys  real 
estate  and  takes  title  in  his  wife's 
name,  with  no  agreement  of  any 
kind  from  her  in  regard  to  it,  it 
will  be  held  to  be  a  gift  to  the  wife. 
Weigert  v.  Schlesinger,  150  N.  Y. 
App.  Div.  765,  135  N.  Y.  Supp. 
335. 


494  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

made  with  her  means.97  Evidence  that  she  had  a  separate 
estate  or  business  before  purchasing  is  not,  however,  essen- 
tial, for  she  may  commence  such  an  estate  or  business 98  by  a 
purchase  on  credit.99  Evidence  that  the  thing  was  a  gift 
accompanied  by  delivery  to  both  at  about  the  time  of  mar- 
riage, raises  a  question  of  intent  as  to  whether  it  was  a  gift 
to  one  or  the  other. 

The  declarations  of  the  husband,  at  the  time  of  his  trans- 
action, that  the  property  delivered  belonged  to,  and  was  de- 
livered for  the  benefit  of  the  wife,  is  competent,  not  only 
against  him,  but  against  the  other  party  to  the  transaction.1 
In  tracing  the  source  of  her  title,  the  rule  of  res  gestce  ap- 
plies, not  alone  to  the  immediate  transfer  of  the  thing  hi 
question,  but  to  the  transactions  by  which  she  came  to  have 
a  separate  property.  Hence,  on  the  question  of  the  title 
to  property  bought  by  her,  the  declarations  of  the  third 
person  who  gave  her  the  money  with  which  she  purchased 
the  property,  showing  that  the  money  was  a  gift  to  her,2  or 
her  correspondence  with  her  business  agent,  showing  the 
source  of  the  fund,3  is  competent  as  part  of  the  res  gestce.  Her 
own  declarations,  if  part  of  the  res  gestce,  are  competent  in 
support  of  her  title.4 

Parol  evidence  is  competent  to  show  that  the  husband  paid 
the  consideration  for  an  estate  conveyed  to  the  wife;  but  this 
raises  a  presumption  that  he  intended  it  as  a  provision  for 
her,5  and,  in  the  absence  of  other  evidence,  establishes  her 

OTSeitz    v.    Mitchell,   94    U.    S.  render  the  property  liable  to  his 

(Otto)  583.  creditors.     There   should   be   evi- 

98  Harrington  v.   Robertson,   N.  dence  of  fraud.    2  Bish.  Mar.  W., 
Y.  Ct.  App.  Nov.  1877;  Frecking  §  87. 

v.  Holland,  53  N.  Y.  422,  rev'g  33  » Grain  v.  Wright,  46  111.  107. 

Super.  Ct.  (J.  &  S.)  499;  Dingens  2Hall  v.  Young,  37  N.  H.  134, 

v.  Clancey,  67  Barb.  566.  144. 

99  Contra,    Carpenter    v.    Tatro,  3  Hannis   v.   Hazlett,   54   Penn. 
36   Wise.    297;    and   see   Huff   v.  St.  139,  s.  P.,  Bank  v.  Kennedy,. 
Wright,  39  Geo.  41.    The  mere  fact  17  Wall.  19. 

that  he  helped  her  with  his  credit,  4Claussen«.  La  Franz,!  Iowa,  226. 
in  making  her  purchase,  does  not  5  So  of  a  house  built  by  him  on 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


495 


title,  except  as  against  his  creditors.6  The  fact  that  he  caused 
or  consented  to  the  deed  being  taken  in  her  name  is  very 
cogent  evidence  that  he  intended  her  to  have  absolute  title.7 


her  land.  Caswell  v.  Hill,  47  N.  H. 
407;  and  see  Tappan  v.  Butler, 
7  Bosw.  480.  The  presumption  is 
one  of  fact  which  can  be  overthrown 
by  proof  of  the  real  intent  of  the 
parties.  Smithsonian  Institution 
?'.  Meech,  169  (J.  S.  398.  The  more 
fact  that  the  husband  takes  pos- 
session of  property  conveyed  to  his 
wife  at  his  instance,  improves  it, 
pays  taxes  thereon  and  occupies 
the  same  with  his  wife  as  a  home- 
stead, are  not  sufficient  to  over- 
come the  presumption  that  the 
conveyance  was  a  gift.  Pool  v. 
Phillips,  167  111.  432,  47  N.  E. 
Rep.  758. 

Where  a  husband  buys  property 
and  has  the  title  placed  in  the  name 
of  his  wife,  the  presumption  is 
that  it  was  intended  as  a  provision 
for  her.  Siling  v.  Hendrickson,  193 
Mo.  365,  92  S.  W.  Rep.  105. 

6  Guthrie  v.  Gardner,  19  Wend. 
414;  chap.  V  of  this  vol.  paragraph 
119;  and  cases  cited  in  13  Moak's 
Eng.  833. 

The  rule  that  fraud  will  not  be 
presumed  but  must  be  proved  by 
the  party  alleging  it,  has  no  ap- 
plication in  a  suit  between  a  wife 
and  a  creditor  of  her  husband  con- 
cerning property,  transferred  to 
her  by  him  after  contracting  an 
indebtedness.  In  such  case  the 
burden  is  upon  the  wife  to  estab- 
lish by  a  preponderance  of  evidence 
the  bona  fides  of  the  sale  or  transfer 
of  the  property  to  her.  Carson  v. 


Stevens,  40  Neb.  112,  58  N.  W. 
Rep.  845,  42  Am.  St.  Rep.  661. 

Where  there  is  absence  of  evi- 
dence that  the  wife  purchased  the 
property  with  her  own  separate 
means,  the  presumption  is  that 
the  husband  furnished  the  means 
of  payment.  Ryan  v.  Bradbury, 
89  Mo.  App.  665. 

7  Smith  v.  Smith,  50  Mo.  262. 
Statements  of  the  deceased  hus- 
band concerning  the  title  to  the 
property  made  after  the  execution 
of  the  conveyance  to  his  wife  are 
inadmissible  against  the  wife;  and 
the  fact  that  the  husband  was  in 
possession  of  the  real  property  con- 
veyed at  the  time  of  the  subse- 
quent declarations  does  not  change 
the  rule.  Emmons  v.  Barton,  109 
Cal.  662,  42  Pac.  Rep.  303. 

Even  where  land  was  purchased 
with  community  funds,  it  was  held 
that  when  deeded  to  the  wife 
the  presumption  arose  that  the 
husband  intended  a  gift  to  his 
wife  and  clear  and  convincing 
evidence  was  required  to  rebut 
it.  Hitchcock  v.  Rooney,  171  Cal. 
285,  152  Pac.  Rep.  913. 

Section  164,  Civil  Code,  pro- 
vides that  "whenever  any  prop- 
erty is  conveyed  to  a  married 
woman  by  an  instrument  in  writ- 
ing, the  presumption  is  that  the 
title  is  thereby  vested  in  her  as 
her  separate  property."  This  pre- 
sumption is  indulged  in  whether 
the  ourchase  money  be  the  separ- 


496 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


He  may  rebut  the  presumption  that  he  intended  it  as  a  pro- 
vision for  her,  by  proof  of  undue  influence,8  or  of  fraud  ef- 
fected by  a  misrepresentation  as  to  a  material  fact,  not 
equally  ascertainable  by  both,  as  distinguished  from  mere 
statement  of  opinion ; 9  or  by  proof  that  at  the  time  of  the 
transaction  it  was  mutually  understood  and  designed  that 
she  should  hold  for  him.10  And  the  amount  itself  may  be  so 


ate  funds  of  the  husband  or  funds 
belonging  to  the  marital  relation. 
Carle  v.  Heller,  18  Cal.  App.  577, 
123  Pac.  Rep.  815. 

Where  a  husband  pays  for  real 
estate  with  his  own  money  but 
has  the  deed  made  out  to  his  wife, 
the  presumption  is  that  the  trans- 
action was  an  advancement  or  gift. 
Hubbard  v.  McMahon,  117  Ark. 
563, 176  S.  W.  Rep.  122. 

8  As  to  the  mode  of  proof  of  this, 
see  paragraphs  67  and  68  of  the 
preceding  chapter.     Compare  Orr 
v.  Orr,  8  Bush,  159. 

Where  a  wife,  contesting  the 
claim  of  the  administrator  of  her 
husband's  estate,  asserted  that  an 
automobile  was  a  gift  to  her,  the 
court  agreed  that  undue  influence 
of  a  wife  over  her  husband  would 
not  be  presumed  merely  from  the 
marital  relation.  Crofford  v.  Crof- 
ford,  29  Cal.  App.  662,  157  Pac. 
Rep.  560. 

9  Jagers  v.  Jagers,  49  Ind.  428. 
Where  a  man  married  a  woman 

who  falsely  represented  that  she 
was  capacitated  for  remarriage  by 
reason  of  the  absence  of  a  former 
husband  for  a  period  of  five  years, 
and,  believing  himself  to  be  legally 
married,  had  his  real  estate  con- 
veyed, through  a  third  party,  to 
himself  and  the  woman  as  husband 


and  wife,  it  was  held  that  he  was 
entitled  to  have  her  divested  of  her 
interest  therein  because  of  her  mis- 
representations. Butler  v.  Butler, 
93  Misc.  (N.  Y.)  258,  157  N.  Y. 
Supp.  188. 

10  Bent  v.  Bent,  44  Vt.  555;  Whel- 
ton  v.  Divine,  20  Barb.  10;  and  see 
Foote  v.  Foote,  58  Id.  258. 

The  presumption  that  where 
land  is  purchased  by  a  husband  in 
the  name  of  his  wife  it  will  prima 
facie  be  an  advancement  or  settle- 
ment, and  not  a  trust,  may  be 
overcome  by  evidence  that  such 
was  not  the  intention  of  the  parties, 
nor  the  nature  of  the  transaction 
relied  upon.  Parrish  v.  Parrish, 
33  Oreg.  486,  54  Pac.  Rep.  352. 

The  mere  fact  that  a  deed  to 
property  acquired  during  the  mar- 
riage relation  was  taken  in  the 
name  of  the  wife,  does  not  give 
rise  to  a  presumption  that  it  was 
intended  as  a  gift  to  her.  Caffey 
v.  Cooksey,  19  Tex.  Civ.  App.  145, 
47  S.  W.  Rep.  65. 

The  presumption  of  an  advance- 
ment or  gift  was  said  to  be  re- 
buttable  by  antecedent  or  contem- 
poraneous declarations  or  circum- 
stances showing  an  intention  to 
create  a  trust  estate,  in  Hubbard  v. 
McMahon,  117  Ark.  563,  176  S. 
W.  Rep.  122. 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE  497 

large,  in  relation  to  the  circumstances  of  the  parties,  as  it- 
self to  rebut  the  presumption  of  a  provision  exclusively  for 
her  benefit.11  The  fact  that  she  afterward  joined  with  him 
in  a  deed  or  mortgage  of  the  land  does  not  estop  her  from 
proving  the  intent,  and  that  all  his  dealing  with  the  property 
was  as  her  agent.12  If  there  be  satisfactory  evidence  13  that 
it  was  by  her  procurement  and  without  his  consent  that  the 
deed  was  made  to  her,  or  if  it  was  the  mutual  understanding 
and  purpose  at  the  tune,  that  she  was  to  hold  the  land  as 
his,  and  not  as  her  own,  the  law  raises  a  resulting  trust  in 
his  favor,  or  in  favor  of  his  creditors.14 

Parol  evidence  is  also  admissible  to  show  that  the  con- 
sideration of  a  deed  to  him  proceeded  from  her  separate 
property  at  the  time  of  the  purchase,15  and  that,  by  fraud, 
duress,  mistake,  abuse  of  confidence,  or  other  undue  means, 
he  procured  or  accepted  the  title.16  Evidence  that  he  per- 
mitted her  to  carry  on  a  farm  or  other  business  on  her  own 
account,  shows,  as  against  him,  her  title  to  property  pur- 
chased in  course  of  the  business,  although  he  advanced 
money  to  her  in  aid  of  the  purchase; 17  and  to  enable  his 
creditors  to  reach  the  property  so  held  by  her,  or  property 
acquired  by  her  through  his  skill  and  labor,  the  burden  is  on 
them  to  show  her  possession  fraudulent.18  If  she  shows  title 

11  Adlard  v.  Adlard,  65  111.  212.  in  fact  intended  by  them  to  be 

12  Tappan  v.  Butler,  7  Bosw.  480.  held  in  trust  for  both.     Waggy  v. 

13  Sandford  v.  Weeden,  2  Heisk.  Waggy,  87  S.  E.  Rep.  (W.  Va.)  178. 
74,  76.  15  Robison  v.  Robison,  44  Ala. 

11  Id.;  2  Bish.  Mar.  W.,  §§  118-  227. 

124.    But  see  the  statute  as  to  re-  16  Bancroft  v.  Curtis,  108  Mass, 

suiting  trusts,  1  N.  Y.  R.  S.  728,  47,  2  Bish.  Mar.  W.,  §  119;  Metho- 

§§  51-53,  and  48  N.  Y.  218,  and  dist  Church  v.  Jaques,  1  Johns.  Ch. 

cases    cited;    Gilbert    v.    Gilbert,  450. 

2  Abb.  Ct.  App.  Dec.  256.  »  Sammis    v.    McLaughlin,    35 

It  was  held  competent  to  prove  N.  Y.  647. 

by  oral  evidence,  dependent  upon  18  Kluender  v.  Lynch,  2  Abb.  Ct. 

the  recollection  of  the  witnesses,  App.  Dec.  538;  Merchant  v.  Bun- 

when  clear  and  positive,  that  prop-  nell,  3  Id.  280. 

erty  purchased  with  the  husband's  Where  the  wife  has  title  to  lands 

funds  but  deeded  to  the  wife  was  and  is  in  possession,  the  burden  is 


498  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

to  a  separate  property  or  capital,  not  derived  from  him, 
the  fact  that  she  employs  him,19  or  their  minor  son,20  upon 
it,  and  supports  him,  does  not  raise  a  presumption  of  fraud; 
on  the  contrary,  if  she  shows  title  to  the  main  property,  and 
that  he  was  destitute  of  means,  the  current  purchases  will  be 
presumed,  in  the  absence  of  evidence  to  the  contrary,  to  be 
made  by  her  funds.21  But  his  conduct  in  the  business  may 
be  given  in  evidence  on  the  question  of  fraud.22 

The  presumption  of  her  ownership  of  property  being  once 
established,  continues  until  alienation  is  shown;  and  though 
the  property  be  kept  in  his  house,  the  possession  is  pre- 
sumptively hers  23  during  cohabitation. 

10.  Evidence  of  Transfer  by  One  to  the  Other. 

A  gift  by  husband  to  wife  may  be  proved  by  parol,  unless 
other  grounds  than  the  relation  require  written  evidence; 24 
and  it  is  enough  to  prove  an  executed  intention  to  make  the 
gift;  and  declarations  made  by  him,  at  the  tune  of  giving  his 
wife  money,  as  to  the  purpose  for  which  he  gave  it,  and 
declarations  as  to  the  person  for  whom  he  was  acting,  made 
when  he  received  a  security  hi  her  favor,  are  competent  in 
favor  of  her  title.25  So  his  express  declaration  may  consti- 

on  the  creditors  of  the  husband  to  Ct.  App.  Dec.  505.  Compare  2 
prove  that  the  lands  did  not  be-  Bish.  Mar.  W.,  §  301,  etc.  Pro- 
long to  her.  Foreman  v.  Citizens'  sumptively  the  avails  of  the  hus- 
StateBk.,  128  Iowa,  661, 105  N.W.  band's  labor  are  his  own;  and  to 
Rep.  163.  make  them  hers,  there  must  be 

19  Buckley  v.  Wells,  33   N.  Y.  some     understanding    that     they 
518,  rev'g  42  Barb.  569.  are  not  to  be  paid  for.    Id.,  §  456. 

A  husband  may  contribute  his         "  O'Leary  v.  Walter,  10  Abb.  Pr. 

services  to  his  wife,  and  if  in  fact  N.  S.  439. 

he  does  so  and  the  business  really         23  Hanson  v.  Millett,  45  Me.  189, 

belongs  to  his  wife,  the  judgment  1  Bish.  Mar.  W.,  §  732. 
creditor  has  no  remedy.     Pierson         "  Mack  v.  Mack,  3  Hun,  325. 
v.  Garrison,  83  N.  J.  Eq.  334,  91          *•  Kelly  v.  Campbell,  2  Abb.  Ct. 

Atl.  Rep.  824.  App.  Dec.  492. 

20  Van  Etten  v.  Currier,  4  Abb.         Where  a  husband  rented  a  safe 
Ct.  App.  Dec.  475.  deposit  box  in  his  wife's  name,  his 

"Vrooman  v.  Griffiths,  4  Abb.      declarations  about  that  time  that 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR  WIFE 


499 


tute  him  trustee  for  her, — as  where  he  credits  her  in  account 
with  moneys  given  by  him  to  her,  but  not  actually  delivered.26 
If  her  title  was  derived  from  him,  his  declarations  made 
after  the  transfer  are  not  competent  in  favor  of  creditors 
and  against  her  title,  to  establish  fraud  in  the  transfer.27  To 
prove  a  gift  by  him  to  her,  the  evidence  must  be  clear.28  The 
mere  fact  that  a  husband  allows  his  wife  to  deal  with,  as  if 
her  own  property,  that  which  is,  or  might  be,  his  by  marital 
right,  does  not  convert  it  or  its  proceeds  into  her  separate 
property.29  But  if,  while  having  such  marital  right,  whether 
to  property  in  possession  or  in  action,  he  borrows  it  of  her, 
agreeding  to  repay  it,  the  agreement  is  valid  30  (unless  per- 
haps, if  made  on  the  mistaken  idea  that  by  law  it  is  her 


bonds  which  he  placed  therein 
were  a  gift  to  his  wife  were  held 
clearly  competent  in  her  favor. 
Leitch  v.  Diamond  Nat.  Bank,  234 
Pa.  St.  557,  83  A.  Rep.  416. 

26  Crawford's  Appeal,  61  Penn. 
St.  55. 

When  a  husband  rented  a  safe 
deposit  box  in  his  wife's  name, 
placing  bonds  therein  as  a  gift  to 
her  and  turning  the  key  over  to 
her,  his  subsequent  access  to  the 
box  and  reinvestment  of  funds  de- 
rived from  the  sale  of  the  securities 
did  not  alter  her  status  as  owner. 
Leitch  v.  Diamond  Nat.  Bank, 
234  Pa.  St.  557,  83  A.  Rep. 
416. 

27  Gillespie  v.  Walker,  56  Barb. 
185,  s.  P.,  Lormore  v.  Campbell,  60 
Id.   62.     Whether   they  are  com- 
petent, to  negative  fraud,  is  dis- 
puted, see  paragraph  5,  above. 

28  Shuttleworth    v.    Winter,    55 
N.  Y.  629,  1  Bish.  Mar.  W.,  §  732. 
Savings    from    house-keeping,    al- 
lowance,   etc,,    not    readily    pre- 
sumed   gifts.       Schouler's    Dom. 


Rel.  242.  Compare  Wells'  Sep. 
Prop.  M.  W.  142. 

A  conveyance  by  deed  for  nomi- 
nal consideration  establishes  a 
transfer  by  him  to  her.  Bird  v. 
Lester,  166  S.  W.  Rep.  (Tex.  Civ. 
App.)  112. 

»  Ryder  v.  Hulse,  24  N.  Y.  372, 
Schouler's  Dom.  Rel.  236.  So 
held  also  where  he  permitted  it 
under  the  mistaken  idea  that  the 
law  entitled  her  to  it.  Sharp  v. 
Maxwell,  30  Miss.  589. 

Tfie  mere  depositing  of  money 
in  his  wife's  name  is  not  sufficient 
proof  of  a  gift  by  the  husband  to 
the  wife.  Hagin  v.  Shoaf,  9  Ala. 
App.  300,  63  So.  Rep.  764,  186 
Ala.  394,  64  So.  Rep.  615. 

Where  the  husband  directs  mon- 
eys payable  to  him  to  be  made 
payable  to  his  wife,  it  is  evidence 
of  a  gift  to  her  in  the  absence  of 
other  proof.  Adams  v.  Button, 
156  Ky.  693,  161  S.  W.  Rep. 
1100. 

30Jaycox  v.  Caldwell,  51  N.  Y. 
395,  affi'g  37  How.  Pr.  240. 


500  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

separate  property),31  and  his  payment  to  her  is  valid,  even 
against  his  creditors.32  So  evidence  of  his  declarations  made 
in  view  of  marriage,  and  after  it,33  or  made  at  the  time  of  re- 
ceiving the  property  or  afterward,  are  competent  to  dis- 
prove the  intent;34  and  if  they  clearly  evince  an  intent  to 
receive  it  for  her,  are  sufficient  to  repel  the  presumption 
of  an  effectual  reduction  to  possession,  and  to  charge  him  as 
trustee  for  her.35  The  fact  that  he  received  her  property  as  a 
loan,  so  as  to  entitle  her  to  payment  among  other  creditors, 
may  be  proved  by  indirect  or  circumstantial  evidence,  with- 
out proving  an  express  promise  at  or  before  the  transaction.36 
A  mere  preponderance  of  proof  is  not  sufficient  to  show 
title  derived  by  her  from  him,  as  against  his  creditors,  es- 
pecially to  invoke  the  interposition  of  a  court  of  equity;  but, 
on  the  other  hand,  proof  beyond  all  doubt  is  not  necessary. 
Evidence  which  satisfies  the  conscience  of  the  court  beyond 
reasonable  doubt  is  enough.37 

11.  Tacit  Transfers. 

Where  one  is  tacitly  permitted  to  deal  with  the  property 
of  the  other,  the  question,  as  between  them  or  between  either 
and  those  claiming  as  assignees  or  successors  of  the  other, 
is  one  of  intent.  Their  express  agreement,  or  their  tacit 
understanding  or  usage,  may  determine  whether  the  trans- 

31  King  v.  O'Brien,  33  Super.  Ct.  287-293,  317,  and  cases  cited; 

(J.  &  S.)  49.  Flick  v.  Devries,  14  Wright,  Penn. 

"Savage  v.  O'Neill,  44  N.  Y.  St.  267;  Tipner  v.  Abrahams,  11 

298,  rev'g  42  Barb.  374.  Wright,  228;  Earl  v.  Champion, 

33  Gackenbach  v.  Brouse,  4  Watts  65  Id.   194;  Sandford  v.  Weeden, 
&  S.  546.  2  Heisk.  76;  Crissman  v.  Crissman, 

34  Such  as  his  promise  to  give  her  23  Mich.  217.     But  compare,  for 
his  note  for  it.     Moyer's  Appeal,  the  notion  that  preponderance  of 
77   Penn.   St.   482,   485;   and  see  proof  is  enough  in  all  civil  cases, 
Jaycox    v.    Caldwell,    51    N.    Y.  10  Am.  Law.  Rev.  642. 

395.  The  burden  of  proof  is  upon  the 

35  Moyer's  Appeal  (above).  wife  who  makes  claim  to  property 

36  Steadman  v.  Wilbur,  7  R.  I.      deeded   to   her   by   her   husband. 
481.  Patterson  v.  Bowes,  78  Wash.  476, 

"Wells'  Sep.  Prop,  of  M.  W.      139  Pac.  Rep.  225. 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


501 


fer  of  personalty  by  wife  to  husband,  was  a  gift  or  a  loan,  or 
only  a  change  of  possession,  under  an  agency,38  or  without 
authority.  In  the  application  of  this  test  two  rules  contend 
for  control. 


12.  The  Old  Rule:  Presumption  in  Favor  of  Husband. 

The  rule  applied  in  jurisdictions  where  the  legal  identity 
of  husband  and  wife  is  still  favored,  is  that  upon  the  mere 
fact  that  she  allows  him  to  receive  and  keep  her  funds,  the 
presumption  is  that  he  is  authorized  to  use  them  as  his  own 
or  for  their  common  benefit  ;  39  and  he  is  not  to  be  required  to 
account  except  from  the  tune  of  her  avowed  revocation  of 
permission,40  or  for  the  last  year;  and  that  the  fact  that  she 
consents  to  his  using  her  funds  hi  purchasing  land  and  taking 
title  to  himself,  without  insisting  on  any  agreement  to  repay 
or  convey,  is  sufficient  evidence  of  her  gift  to  him.41  But 


38  2  Bish.  Mar.  W.,  §446.  As 
to  confusion  by  commingling,  see 
1  Id.,  §§  611,  612,  2  Id.  125,  126, 
446,  466;  Schouler's  Dom.  Rel. 
213,  214;  Chambovet  v.  Cagney, 
35  Super.  Ct.  (J.  &  S.)  486;  Hall 
v.  Young,  37  N.  H.  134,  149. 

"Jacobs  v.  Hessler,  113  Mass. 
161;  Kleine's  Appeal,  39  Penn. 
St.  463. 

A  wife's  separate  property  may 
become  subject  to  the  debts  of  her 
husband  in  case  he  be  permitted 
to  deal  with  it  and  obtain  credit 
upon  it  as  his  own,  with  her  knowl- 
edge and  consent.  Wood  v.  Yant, 
27  Col.  App.  189,  197,  149  Pac. 
Rep.  854. 

40  Lyons  v.  Green  Bay,  etc.,  R. 
R.  Co.,  42  Wise.  548,  553,  and 
cases  cited. 

A  husband  who,  without  exer- 
cising undue  influence,  received 
the  rents  and  income  from  his 


wife's  estate  and  applied  them  to 
his  own  or  his  family's  use  was  de- 
clared to  have  acquired  a  separate 
estate  therein,  where  his  acts 
were  either  expressly  authorized 
or  tacitly  agreed  to  by  his  wife. 
Ferguaon  v.  Anderson,  4  Tenn. 
Cir.  App.  54.  To  the  same  effect 
is  Crowley  v.  Crowley,  167  Mo. 
App.  414,  151  S.  W.  Rep.  512, 
where  it  was  held  that  the  rule 
was  the  same  whether  the  wife 
had  an  equitable  or  statutory 
separate  estate. 

"Campbell  v.  Campbell,  21 
Mich.  438,  443;  and  see  Wells' 
Sep.  Prop.,  M.  W.  258. 

Land  which  a  husband  bought 
with  income  from  his  wife's  sep- 
arate estate  was  held  to  belong 
to  the  husband  free  of  his  wife's 
claims,  where  it  appeared  that 
she  allowed  him  to  use  such  in- 
come without  a  promise  to  repay. 


502  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

the  presumption  in  either  case  may  be  rebutted  by  proof 
that  he  received  the  property  in  trust  for  her.42  Evidence 
of  his  declarations  is  enough  to  establish  such  a  trust,  as 
against  him  and  his  personal  representatives,43  though  not 
as  against  his  creditors.44 

13.  The  New  Rule :  Presumption  in  Favor  of  Title. 

The  rule  laid  down  by  some  courts  as  more  in  consonance 
with  the  modern  doctrine,  is  that  where  she  has  a  right  to  her 
property  under  the  statute,  as  if  sole,  his  dealing  with  her 
funds  will  be  presumed,  in  the  absence  of  proof  to  the  con- 
trary, to  be  in  the  character  of  agent  for  her,  and  they  will 
not  be  deemed  to  have  become  his  property,  unless  he  af- 
firmatively establishes  a  gift  or  other  legal  transfer.45 

14.  Evidence  of  His  Application  of  Her  Funds. 

When  called  to  account  for  the  proceeds  of  her  funds,  evi- 
dence of  written  authority  to  him  to  apply  them  is  not  neces- 
sary; he  may  prove  by  his  own  testimony  that  she  authori- 
ized  him  to  pay  them  out,  and  that  he  did  so.46 

Nihiser  v.  Nihiser,  127  Md.  451,  with  her  consent,  has  been  in  the 

96  Atl.  Rep.  611.  habit  of  receiving  the  income  of 

42  Jacobs  v.  Hessler  (above) .  her    separate    estate,    equity    has 

43  Moyer's    Appeal,    77    Penn.  heretofore  usually  regarded  this  as 
St.  486.  showing  her  voluntary  choice  thus 

44  Alston  v.  Rowles,  13  Fla.  128.  to  dispose  of  it  for  the  benefit  of 
But  see  paragraph  5  (above).  the  family;  and  while  they  regard 

45  Patten  v.  Patten,  75  111.  446,  him  as  holding  as  her  tenant,  and 
449;  Houston  v.  Clark,  50  N.  H.  receiving  as  her  trustee,  they  will 
482.  not  ordinarily  require  him  to  ac- 

Proof  of  his  authority  as  agent  count  beyond  the  income  of  the 
must  be  shown  before  a  husband  last  year,  presuming  that  e very- 
can  release  his  wife's  claim.  Clarke  thing  previous  has  been  settled  by 
v.  Wells,  83  N.  Y.  Misc.  93,  144  mutual  agreement  (2  Story  Eq. 
N.  Y.  Supp.  629.  Jur.,  §1396);  Albin  v.  Lord,  39 

48  Southwick  v.  Southwick,  9  N.  H.  204,  or  expended  by  her 

Abb.  Pr.  N.  S.  109,  aff'd  in  49  authority.  Methodist  Episcopal 

N.  Y.  510.  When  the  husband,  Church  v.  Jaques,  1  Johns.  Ch.  450. 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR  WIFE 


503 


15.  Evidence  of  the  Wife's  Conveyance. 

Where  the  statute  requires  the  husband's  written  consent 
to  her  conveyance,  oral  consent  is  not  enough.47  Where  the 
statute  requires  48  a  private  acknowledgment  by  a  married 
woman  conveying,  she  passes  no  estate  unless  she  makes  the 
proper  acknowledgment;  and  the  officer's  certificate  is  the 
only  evidence  permitted  of  the  fact.  Its  absence  cannot 
be  supplied  by  parol; 49  and  a  substantial  defect 50  in  the 
certificate  cannot  be  cured  by  parol,  nor  reformed  in 
equity.51 

16.  Impeaching  Her  Conveyance. 

Equity  does  not  require  evidence  of  such  actual  fraud 
and  duress  hi  order  to  enable  her  to  set  aside  her  convey- 


47  Schooler's  Dom.  Rel.  235,  n.; 
Townsley  v.  Chapin,  12  Allen,  476. 
But  see  to  the  contrary,  Whig  v. 
Schramm,  13  Hun,  377,  holding 
that  a  conveyance  without  the  as- 
sent is  valid,  except  against  him; 
and  subsequent  assent  makes  it 
valid  against  him. 

A  married  woman  can  be  bound 
only  by  her  deed  duly  executed 
with  the  written  assent  of  her  hus- 
band and  with  her  privy  examina- 
tion, or  by  the  judgment  or  decree 
of  a  court  of  competent  jurisdic- 
tion. Smith  v.  Bruton,  137  N.  C. 
79,  49  S.  E.  Rep.  64. 

It  is  a  sufficient  compliance 
with  the  statute  if  the  wife  ex- 
ecutes a  power  of  attorney,  to  a 
third  person  to  sell  and  convey  her 
land,  and  the  attorney  then  gives 
gives  a  deed  in  which  the  husband 
joins.  Nolan  v.  Moore,  96  Tex. 
341,  72  S.  W.  Rep.  583,  97  Am.  St. 
Rep.  911. 

A  deed  by  a  married  woman  in 


which  the  husband  does  not  join 
is  a  nullity.  Ellis  v.  Pearson,  104 
Tenn.  591,  58  S.  W.  Rep.  318; 
Montoursville  v.  Fairfield,  112  Pa. 
St.  99,  3  Atl.  Rep.  862. 

48  By  the  New  York  statute, 
Real  Property  Law,  §  302,  the  ac- 
knowledgment of  a  married  woman 
may  be  taken  as  if  she  were  sole. 

49Elwood  v.  Klock,  13  Barb. 
50;  but  see  Richardson  v.  Pulver, 
63  Id.  67,  and  cases  cited.  But  it 
need  not  be  alleged  in  pleading. 
Williams  v.  Soutler,  55  111.  130. 

50  The  objection  must  specify 
the  defect. 

"Willis  v.  Gattman,  53  Miss. 
721.  As  to  what  defects  are  "sub- 
stantial," see  Deery  v.  Cray,  5 
Wall.  806;  Carpenter  v.  Dexter,  8 
Id.  513;  Secrist  v.  Green,  3  Id.  750; 
Angier  v.  Schieffelin,  72  Penn.  St. 
106,  s.  c.,  13  Am.  Rep.  659;  Wright 
v.  Taylor,  2  Dill.  C.  Ct.  23,  and 
note  p.  26;  Merritt  v.  Yates,  22 
Am.  R.  128,  s.  c.,  71  111.  636. 


504 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


ance  procured  by  the  husband  as  is  required  against  a 
stranger,52  and  may  relieve  her  against  a  voluntary  convey- 
ance to  him,  under  mistake  or  fraud,  though  intended  by  her 
in  fraud  of  creditors.53  Evidence  of  the  state  of  her  mind  and 
of  her  health  at  the  time,  and  that  her  acknowledgment  had 
been  preceded  by  threats  and  menaces  of  her  husband,  hi 
case  she  should  refuse  it,  is  competent,54  though  it  may  not 
be  sufficient  against  a  bona  fide  purchaser  for  value.55  A 
proper  certificate  of  acknowledgment  to  the  deed  is  prima 
facie  evidence,  not  only  of  the  facts  certified,  but  of  the 
freedom  of  her  execution;  but  it  is  not  conclusive.56  It  may 
be  rebutted,  and  the  testimony  of  a  party  to  it  is  sufficient 


52  Witbeck  v.  Witbeck,  25  Mich. 
439.  Compare  Block  v.  Mel- 
ville, 10  La.  Ann.  785.  See  also 
note  to  paragraph  1  (above),  and 
2  Bish.  Mar.  W.,  §480.  Rati- 
fication by  wife,  of  deed  forged 
by  husband,  not  inferred  from 
long  silence  after  being  in  formed. 
Ladd  v.  Hildebrant,  27  Wis.  135. 

63  Boyd  v.  De  La  Montaignie, 
4  Supm.  Ct.  (T.  &  C.)  152. 

54  Central  Bank  v.  Copeland,  18 
Md.  305,  318. 

The  duress  must  be  proved  with 
clearness  and  emphasis.  Mere 
proof  that  the  husband  was  a  vio- 
lent, turbulent  man,  of  intemper- 
ate habits,  and  when  intoxicated 
prone  to  quarrels  and  violence, 
and  dogmatic  and  domineering 
toward  his  wife,  and  that  she  was 
habituated  to  comply  implicitly 
with  his  commands  and  wishes  is 
insufficient.  There  must  be  proof 
of  persuasion  or  compulsion  by  her 
husband  to  induce  execution  of  the 
deed.  Freeman  v.  Wilson,  51  Miss. 
329. 

55  Rexford  v.  Rexford,  7  Lans.  6. 


False  promises  made  by  the 
husband  to  the  wife  as  to  the  use 
which  will  be  made  of  the  purchase 
money  will  not  support  an  action 
for  the  cancellation  of  a  deed  on 
the  ground  of  duress.  Pratt  Land, 
etc.,  Co.  v.  McClain,  135  Ala.  452, 
33  So.  Rep.  185,  93  Am.  St.  Rep. 
35. 

«  1  N.  Y.  R.  S.  759,  §  17;  Jack- 
son v.  Schoonmaker,  4  Johns.  161; 
Williams  v.  Woodard,  2  Wend. 
486. 

When  a  deed  or  mortgage, 
regular  in  appearance  and  bear- 
ing the  genuine  signature  of  the 
grantor  and  his  wife  and  a  duly 
certified  acknowledgment,  is  at- 
tacked, the  evidence  to  impeach 
it  must  be  clear  and  convincing. 
A  deliberate  deed  or  writing  is  of 
too  much  solemnity  to  be  brushed 
away  by  loose  and  inconclusive 
testimony.  Rowland  v.  Blake, 
97  U.  S.  624, 24  L.  ed.  1027;  North- 
western Mutual  Life  Ins.  Co.  v. 
Nelson,  103  U.  S.  544,  26  L.  ed. 
436. 


ACTIONS    BY   OR   AGAINST   HUSBAND   OR   WIFE 


505 


to  raise  a  question  for  the  jury.57  Her  voluntary  signatures 
for  her  husband  cannot  be  avoided  by  mere  proof  of  her 
neglect  to  read  the  instrument.58 

17.  Evidence  of  Wife's  Separate  Business. 

To  prove  that  she  had  a  separate  business,  within  the 
statute,  it  is  not  enough  to  show  an  isolated  transaction,  nor 
several  disconnected  acts,59  nor  the  rendering  of  domestic 
service,  such  as  the  nursing  of  one  person;60  without  evi- 


57  Williams  v.  Woodard  (above). 
The  New  York  rule,  stated  in  the 
text,  is  embodied  in  the  statute; 
but  whether  the  idea  of  estoppel 
can  suffice  to  preclude  the  wife 
from  denying  the  truth  of  her  ac- 
knowledgment, as  held  in  Kerr  v. 
Russell,  69  111.  666,  s.  c.,  18  Am. 
Rep.  634,  or  its  freedom,  as  held  in 
White  v.  Graves,  107  Mass.  325, 
s.  c.,  9  Am.  R.  38;  or  the  absence 
of  her  husband,  as  held  in  John- 
ston v.  Wallace,  53  Miss.  335,  re- 
mains to  be  determined.  The 
notion  that  the  certificate  has  the 
force  of  a  judicial  determination  is 
not  tenable,  for  the  examination  is 
ex  parte.  Moreover,  the  officer 
does  not  certify  that  her  execution 
is  free;  he  has  not  adequate  power 
to  investigate  that  question.  He 
certifies  that,  under  due  precau- 
tions of  privacy,  taken  by  him,  she 
acknowledged  that  it  was  free. 
Even  on  the  theory  of  a  judicial 
determination,  the  certificate  may 
be  impeached  by  evidence  that  she 
did  not  appear  before  the  officer,  as 
held  in  Allen  v.  Lenoir,  cited  in 
Johnston  v.  Wallace,  53  Miss.  335, 
for  this  is  the  jurisdictional  fact; 
or  by  evidence  that,  at  the  time  of 


acknowledgment,  the  deed  was 
lacking  in  any  part  essential  to  an 
effective  grant, — such  as  having 
a  blank  for  the  grantee's  name,  as 
held  in  Drury  v.  Foster,  2  Wall.  34, 
and  Burns  v.  Lynde,  6  Allen,  305, 
and  her  unacknowledged  power  to 
fill  such  blanks  is  void  (Id.) ;  or  by 
evidence  of  fraud  or  imposition 
in  obtaining  the  acknowledgment, 
coupled  with  notice  to  the  grantee, 
as  held  in  Hill  v.  Patterson,  51 
Penn.  St.  289.  If  it  is  to  be  held 
conclusive,  notwithstanding  these 
and  similar  infirmities,  it  must  be 
on  grounds  of  an  estoppel  allowed 
for  reasons  of  public  policy,  pecu- 
liar to  the  security  of  titles.  For 
other  cases  see  14  Moak's  Eng.  500. 

58  Fowler  v.  Trull,  1  Hun,  411. 

59  2  Bish.  Mar.  W.,  §441;  but 
compare  Hart  v.  Young,  1  Lans. 
417;    and    note    to    paragraph    9 
(above) . 

60  Cuck  v.  Quackenbush,  13  Hun, 
107,  and  cases  cited. 

Under  the  Iowa  Code  it  was 
held  that  a  wife  could  maintain  an 
action  in  her  own  name  for  com- 
pensation for  nursing  a  third  per- 
son, where  she  had  received  the 
husband's  consent  to  perform  such 


506  ACTIONS   BY    OR   AGAINST   HUSBAND    OR   WIFE 

dence  that  it  was  intended  by  her  and  her  husband  as  a 
separate  business;  but  the  management  of  real61  or  personal62 
property  for  profit,  is  a  business,  as  distinguished  from  the 
rental  of  it,  which  is  not.63  The  fact  that  she  commenced  to 
carry  on  the  business  before  her  marriage,  is  presumptive 
evidence  of  a  separate  business  and  stock; 64  all  the  stronger 
if  it  was  continued  in  her  maiden  name  after  marriage.65 
Where  a  regular  place  of  business  is  kept,  the  fact  that  the 
shop  was  hired,  and  notes  for  goods  bought  were  given,  by 
the  husband,  in  his  own  name,  is  not  always  conclusive 
evidence  that  the  wife  is  not  the  owner.66 

H.  ACTIONS   BY   OR  AGAINST   HUSBAND 

18.  Actions  by  Him  Founded  on  Marital  Right. 

In  his  sole  action  for  rents  and  profits  of  her  land,  he  must 
prove  that  they  accrued  since  marriage.67  In  respect  to  her 
choses  in  action,  evidence  that  he  received  them,  as  husband, 
raises  a  presumption  of  intent  to  reduce  them  to  possession, 
only  to  be  rebutted  by  clear  proof  of  a  contrary  intent.68 

services  and  retain  the  proceeds  6S  Nash  v.  Mitchell,  3  Abb.  New 

therefrom   as   her   own   property.  Cas.  171. 

Tucker  v.  Anderson,  1915,  154  N.  •«  Peters  v.  Fowler,  41  Barb.  467. 

W.  Rep.  (Iowa)  477.    And  in  Mat-  «6  Askworth  v.  Outran,  37  Law 

ter  of  Grogan,  82  Misc.  555,  145  N.  Times,  N.  S.  85. 

Y.Supp.  1913,  285,  it  was  said,  "it  «  Mason  v.  Bowles,  117  Mass. 

is  always  competent  for  the  hus-  86. 

band   to  emancipate  his  wife  in  87  Decker     v.     Livingston,      15 

regard  to  the  performance  of  any  Johns.  479. 

particular  kind  of  services,  (nurs-  The  rents  of  the  wife's  real  es- 

ing),  so  as  to  enable  her  to  collect  tate    accruing    during    coverture 

for  the  same  in  her  own  right."  belong  to  the  husband.    Clapp  v. 

See  also  Badger  v.  Orr,  1  Ohio  App.  Stoughton,  10  Pick.  (Mass.)  463. 

293.  «8Moyer's  Appeal,  77  Penn.  St. 

61  Such  as  carrying  on  a  farm.  482.    See  paragraphs  8-13  (above). 

Smith  v.  Kennedy,  13  Hun,  9.  By  the  common  law  the  husband 

82  Such  as  employing  the  hus-  was  entitled  during  coverture  to 

band  to  run  a  canal  boat.     Whe-  receive  and  to  reduce  to  his  pos- 

don  v.  Champlin,  59  Barb.  61.  session  and  ownership  all  choses  in 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE  507 

But  evidence  that  he  collected  interest  or  dividends  on  her 
stock  or  choses  in  action,  does  not  necessarily  show  reduction 
of  the  principal  to  his  possession,  but  only  of  the  income  so 
received.69 

19.  Defenses. 

To  defeat  his  sole  action  for  moneys  due  to  her,  it  should 
affirmatively  appear  that  the  legal  or  beneficial  interest  is 
her  separate  property,  or  is  otherwise  within  the  statute  or 
rules  of  equity,  enabling  her  to  sue  alone.70  Where  they  sue 
together  on  a  chose  hi  action,  not  her  separate  property 
or  right,  a  release  or  other  extinguishment  of  the  claim,  by 
him,  will  bar  her  equally.71  And  if,  after  her  death,  he  sues 
hi  his  marital  right,  as  her  survivor,  her  admissions  are  com- 
petent against  him,  because  he  claims  in  a  representative 
capacity.72  When  he  sues  alone,73  or  they  sue  jointly,74  for 
her  services  rendered  during  coverture,  evidence  of  her  ad- 
missions of  payment  is  not  competent,  without  evidence  of 
her  authority  to  receive  money  for  him.75  But  where  there 
is  a  division  of  the  labors  of  husband  and  wife,  and  she  is 
employed  at  service,  it  is  presumed  to  be  with  his  consent, 

action  belonging  to  the  wife  at  the  70  Crolius  v.  Roqualina,  3  Abb. 

time  of  marriage,  or  which  may  Pr.  114. 

accrue  to  her  while  the  coverture  A  husband  cannot  recover  for 

continues.    The  husband  may  dur-  damage  done  to  his  wife's  wearing 

ing  the  coverture  in  the  assertion  apparel  through  the  explosion  of  a 

of   his   marital   rights   and  for   a  gas  meter,  as  under  the  Domestic 

valuable  consideration  assign  the  Relations  Law  the  wife  may  sue. 

choses  in  action  of  the  wife  which  Gilligan  v.  Consolidated  Gas  Co., 

are  capable  of  being  immediately  47  N.  Y.  Misc.  Rep.  658,  94  N.  Y. 

reduced    to    possession   so   as   to  Supp.  273. 

vest  at  least  the  beneficial  owner-  71  Dewall     v.     Covenhoven,     5 

ship  hi  the  purchaser.     Binning-  Paige,    581;    Beach    v.    Beach,    2 

ham  Waterworks  Co.  v.  Hume,  121  Hill,  260. 

Ala.  168,  25  So.  Rep.  806,  77  Am.  «  Smith  v.  Sergent,  2  Hun,  107. 

St.  Rep.  43.  "  Hall  v.  Hill,  2  Str.  1094. 

69  Hunter    v.    Hallett,    1    Edw.  74  Jordan  v.   Hubbard,  26  Ala. 

388;  Burr  v.  Sherwood,  3  Bradf.  433,  439. 

85.  "5  Schouler's  Dom.  Rel.  112. 


508  ACTIONS   BY    OR   AGAINST   HUSBAND    OR  WIFE 

and  the  presumption  would  only  be  rebutted  by  his  objec- 
tion. Hence,  declarations  by  her  in  the  course  of  such  serv- 
ice, and  before  any  objection  by  him  as  to  the  terms  of  her 
employment,  are  competent  against  him  as  part  of  the  res 
gestoe,  when  he  sues  for  her  wages.76 

20.  Actions  Against  Him  Founded  on  Marital  Obligation. 

Evidence  that  he  knew  of  and  assented  to  purchases  by 
her,  which  she  had  not  legal  capacity  to  make,  renders  him 
liable  therefor.77  Her  post-nuptial  admissions  are  not  com- 
petent evidence  in  an  action  against  him,78  or  against  both,79 
for  her  ante-nuptial  debt. 

21.  Actions  Founded  on  Her  Agency. 

In  applying  the  presumptions  drawn  from  the  marital 
relation,  the  agency  of  the  wife,  to  order,  on  her  husband's 
credit,  articles  reasonably  suitable,80  may  be  inferred  from 
her  being  permitted  to  receive  the  articles  in  his  house.81 
The  housewife  is  presumed  to  be  authorized  to  order  do- 
mestic articles  bought  for  their  family.82  If  there  is  sufficient 

76  Hachman  v.  Flory,   16  Penn.          See   New   York   Domestic   Re- 
St.  196.  lations  Law,  §  57,   and   statutory 

The   husband   may   agree   with  provisions  of  the  several  states, 

the  wife  by  oral  contract  that  she  78  Ross    v.    Winners,    1    Halst. 

shall  be  entitled  to  her  own  earn-  (N.  J.)   366;  Churchill  v.  Smith, 

ings  for  service  rendered  to  others.  16  Vt.  560. 

Gage  v.  Gage,  78  Wash.  262,  138  »  Lay  Grae  v.  Peterson,  2  Sandf . 

Pac.  Rep.  886.  338. 

77  Ogden   v.   Prentice,   33  Barb.  M  Lane  v.   Ironmonger,   1   New 
160,  2  Bish.  Mar.  W.,  §  82.  Pr.  Gas.  105,  s.  c.,  13  Mees.  &  W. 

A  husband  is  not  liable  for  the  368. 

torts  of  his  wife.  Hageman  v.  "Rose.  N.  P.  382  (13th  ed.  535). 
Vanderdoes,  15  Ariz.  312,  138  82  2  Whart.  Ev.,  §  1256. 
Pac.  Rep.  1053,  L.  R.  A.  1915,  A.  Where  a  wife  ordered  a  dress 
491,  Ann.  Cas.  1915,  D.  1197;  which  was  deemed  necessary,  it 
Fadden  v.  McKinney,  87  Vt.  316,  was  held  that  there  was  a  pre- 
89  Atl.  Rep.  351;  Tanzer  v.  Read,  sumption  that  she  contracted  as 
160  N.  Y.  App.  Div.  584,  145  N.  the  husband's  agent,  in  the  ab- 
Y.  Supp.  708.  sence  of  any  contract  on  her  part 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


509 


other  evidence  tending  to  show  authority,  to  go  to  the  jury, 
there  need  not  be  evidence  that  the  things  were  necessaries.83 
The  extravagant  character  of  the  order  may  be  considered 
by  the  jury  as  tending  to  rebut  a  presumption  of  agency.84 
No  such  presumption  arises  as  to  transactions  had  after 
she  has  left  him  voluntarily  and  causelessly.85 

Where  a  wife  is  allowed  by  the  husband  to  act  for  him,— 
as  in  the  case  of  a  wife  receiving  and  caring  for  boarders  in 
the  household,86  or  the  wife  of  a  tradesman  or  mechanic 
occupying  the  shop  premises,  or  shown  to  have  been  seen 
there  on  more  than  one  occasion,  appearing  to  conduct  the 
business  in  his  absence, — she  is  presumed  to  have  authority 
to  answer  for  him  in  matters  of  the  like  nature  there.87 


that  she  alone  would  be  respon- 
sible, or  proof  that  her  husband 
had  already  supplied  her  with  a 
similar  article  or  cash  to  pay  for  it, 
or  that  he  had  given  notice  that 
he  would  not  be  responsible.  May 
v.  Josias,  159  N.  Y.  Supp.  820. 

*3  Reid  v.  Teakle,  13  C.  B.  627, 
s.  c.,  22  L.  J.  C.  P.  161. 

84  Lane  v.  Ironmonger,   1   New 
Pr.  Cas.  105,  s.  c.,  13  Mees.  &  W. 
368. 

A  complaint  for  articles  sold  as 
necessaries  was  held  not  to  be  de- 
murrable  on  the  ground  that  the 
articles  in  question  were  not 
strictly  necessaries,  that  being  a 
matter  of  defense,  it  was  for  the 
jury  to  decide  whether  or  not  the 
articles  were  suitable  to  the  wife's 
station  in  life  and  as  to  the  hus- 
band's ability  to  pay  therefor. 
Wickstrom  v.  Peck,  155  App.  Div. 
(N.  Y.)  523,  140  N.  Y.  Supp.  570. 

85  Johnston  v.  Sumner,  3  H.  & 
N.  261;  Biffin  ».  Bignell,  7  H.  &  N. 
877. 

"When  a  wife  takes  up  neces- 


saries for  the  family  her  husband 
and  herself,  the  primary  pre- 
sumption is  that  she  is  acting  as 
his  messenger  or  agent;  the  pri- 
mary duty  of  furnishing  neces- 
saries being  upon  him.  This  pre- 
sumption disappears  when  she 
separates  from  him  unless  the 
separation  is  shown  to  be  justifi- 
able." Marshall  v.  Hill,  59  Pa. 
Super.  Ct.  481. 

It  seems  that  where  a  wife  aban- 
dons the  husband's  home  and 
refuses  to  live  or  cohabit  with 
him,  he  is  not  responsible  for  her 
necessaries,  unless  expressly  re- 
quested by  him.  Johnson  v.  Cole- 
man,  13  Ala,  A.  520,  69  So.  Rep. 
318. 

88  Riley  v.  Suydam,  4  Barb.  222. 
Hence  her  admission  that  nothing 
is  due  from  the  boarder,  is  com- 
petent against  the  husband.  Ib. 

87  Such  as  to  offer  to  settle  a  bill 
for  goods  delivered  there.  Clif- 
ford v.  Burton,  1  Bing.  199. 

When  the  husband  pays  an  ac- 
count for  goods  purchased  by  hi? 


510 


ACTIONS   BY    OR   AGAINST   HUSBAND    OR   WIFE 


22.  Defenses. 

The  presumption  of  his  liability  may  be  rebutted  by  evi- 
dence that  the  credit  was  given  to  her  personally,88  if  she  had 
capacity  as  a  married  woman  to  make  such  a  contract.89 
Evidence  that  she  said  the  articles  were  for  herself,90  and 
that  she  gave  a  note  signed  by  herself,91  or  that  the  charge  in 
plaintiff's  books  was  against  her  only,92  is  not  conclusive 
that  the  credit  was  given  to  her  alone. 

23.  Action  for  Necessaries. 

To  hold  the  husband  liable  for  necessaries  furnished  to  his 
wife,  unless  the  facts  indicate  her  agency  for  him,  his  neg- 
lect or  default  must  be  shown.93  The  marriage  is  sufficiently 


wife  it  amounts  to  a  ratification 
upon  which  he  can  be  held  liable 
for  future  purchases.  Bonwit, 
Teller  &  Co.  v.  Lovett,  102  N.  Y. 
Supp.  800. 

88  Bentley  v.  Griffin,  5  Taunt.  356. 

The  fact  that  the  bill  for  the 
goods  sold  was  sent  to  the  wife 
is  not  conclusive  that  the  husband 
was  not  liable.  Nagler  v.  L'Es- 
perance,  126  N.  Y.  Supp.  655. 

If  at  the  time  the  goods  were 
furnished  to  the  wife,  it  was  known 
to  the  seller  that  she  was  living 
apart  from  her  husband  the  pre- 
sumption that  they  were  furnished 
on  his  credit  is  rebutted.  Pick- 
hardt  v.  Pratt,  55  N.  Y.  Misc.  231, 
105  N.  Y.  Supp.  236. 

Where  the  goods  are  supplied 
on  the  credit  of  the  wife  the  hus- 
band cannot  be  held  liable.  Jones 
r.  Gutman,  88  Md.  355,  41  Atl. 
Rep.  792. 

Where  it  is  shown  that  the  busi- 
ness for  which  the  husband  or- 
dered goods  was  his  wife's  business 


and  it  was  so  understood  by  the 
seller,  the  husband  will  not  be 
liable.  Griffith  v.  Hall,  70  111. 
App.  500. 

89  See  Ogden  v.  Prentice,  33  Barb. 
160;    Cropsey    v.    McKinney,    30 
Id.  47. 

90  Gates  v.  Brower,  9  N.  Y.  205. 

91  Id. 

92  Jewsbury  v.  Newbold,  26  L.  J. 
Exch.  247. 

93  Supervisors  of  Monroe  v.  Bud- 
long,  51  Barb.  493;  McGahey  v. 
Williams,  12  Johns.  293,  and  cases 
cited.    The  legal  theory  of  the  ac- 
tion, however,   is  not  negligence, 
but  an   implied   promise   to   pay. 
See    Cromwell    v.    Benjamin,    41 
Barb.  558;  Kelly  v.  Davis,  49  N.  H. 
176,  s.  c.,  6  Am.  R.  499.    But  see 
Mozen  v.  Pick,  3  Mees.  &  W.  481. 

It  must  appear  that  the  goods 
were  sold  on  the  husband's  credit. 
Rosenfeld  v.  Peck,  149  N.  Y.  App. 
Div.  663, 134  N.  Y.  Supp.  392. 

The  husband  is  liable  to  an  at- 
torney for  professional  services 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


511 


proved  by  evidence  of  cohabitation,  and  holding  out,  or 
repute.94  Agency  is  inferable  from  the  nature  of  articles 
such  as  are  suitable  and  necessary  for  the  wife  of  one  in  his 
station,  and  from  their  delivery  at  his  abode  without  his 
objection.95  But  if  he  shows  that  the  credit  was  given  against 
his  express  dissent  and  notice  thereof  to  plaintiff,  the  burden 
is  on  plaintiff  to  show  not  only  that  the  things  furnished  were, 
hi  their  nature,  suitable  and  necessary,  but  also  that  the 
husband  neglected  his  duty  to  provide  supplies,  and  there- 
fore they  were  needed  in  the  particular  case.96 


rendered  his  wife  in  obtaining  for 
her  an  increase  in  alimony  allowed 
her  by  a  decree  of  separation.  Horn 
v.  Schmalholz,  150  N.  Y.  App.  Div. 
333,  134  N.  Y.  Supp.  652. 

An  attorney  suing  for  services 
rendered  a  wife  in  the  matter  of  a 
separation  suit  by  her,  must  show 
that  the  suit  was  either  necessary 
or  reasonable  and  proper.  Hen- 
drick  v.  Silver,  115  N.  Y.  Supp. 
1093. 

94  See  Ch.  V,  paragraphs  18  and 
19.  Cohabitation  and  holding  out 
to  plaintiff  is  conclusive  (John- 
stone  v.  Allen,  6  Abb.  Pr.  N.  S. 
306,  1  Greel.  Ev.,  §27),  and  the 
fact  that  plaintiff  knew  there  had 
been  no  formal  marriage,  is  irrel- 
evant. Watson  v.  Threlkeld,  2 
Esp.  637. 

"Rose.  N.  P.  382  (13th  ed. 
535). 

When  goods  for  which  a  wife 
has  ordinarily  authority  to  con- 
tract on  the  part  of  her  husband, 
such  as  articles  of  dress,  are  ordered 
by  her  and  delivered  at  his  resi- 
dence, where  she  also  resides, 
prima  fade  the  husband  is  liable. 
Jewsbury  v.  Newbold,  40  E.  L.  & 


Eq.  518,  26  L.  J.  Exch.  247.  Fol- 
lowed in  Noel  v.  O'Neill,  128  Md. 
202,  97  Atl.  Rep.  513. 

Where  the  husband  was  sued 
for  necessaries  furnished  his  wife, 
a  letter  from  the  husband's  at- 
torney to  the  defendant's  wife 
wherein  it  was  stated  that  the 
husband  had  promised  to  supply 
the  wife  with  necessaries  was  held 
admissible  to  establish  the  marital 
relation.  Marshall  v.  Hill,  59  Pa. 
Super.  Ct.  481. 

96  Keller  v.  Phillips,  39  N.  Y. 
351,  affi'g  40  Barb.  391. 

Where  there  is  no  evidence  that 
the  husband  has  supplied  sufficient 
necessaries  or  that  he  has  notified 
shop  keepers  not  to  extent  credit, 
the  presumption  is  that  the  wife 
acted  as  agent  of  the  husband  in 
purchasing  the  goods,  and  he  is 
liable.  Baccaria  v.  Landers,  84 
N.  Y.  Misc.  396,  146  N.  Y.  Supp. 
158. 

Where  a  wife  spends  funds  out 
of  her  separate  estate  to  provide 
necessaries  for  herself  and  infant 
children  she  can  recover  from  the 
husband.  De  Brauwere  v.  De 
Brauwere,  203  N.  Y.  460,  96 


512 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


The  appropriate  character  of  the  articles  cannot  be 
proved  by  the  opinion  of  a  witness; 97  nor  by  what  the  de- 
fendant had  been  accustomed  to  purchase  of  a  particular 
dealer; 98  but  the  facts  as  to  her  condition,  and  his  station 
in  life,  and  the  character  of  the  articles  supplied  by  plain- 
tiff, must  be  laid  before  the  jury."  His  leaving  the  State 
without  making  provision  for  her,  is  sufficient  evidence 
of  desertion;  and  plaintiff  is  not  bound  to  prove  that  a 
demand  was  made  on  the  husband  to  provide  for  her;  but 
his  refusal  to  do  so  may  be  inferred  from  the  fact  of  deser- 
tion.1 If  it  appear  that  he  actually  provided  an  allowance 


N.  E.  Rep.  722,  38  L.  R.  A.  N.  S. 
508. 

No  recovery  can  be  had  for 
medical  services  rendered  a  wife 
living  apart  from  her  husband,  or 
for  necessaries  furnished  to  her, 
unless  proof  of  the  reason  for  the 
separation  is  given  or  proof  that 
the  husband  is  not  providing  suf- 
ficient means  for  her  support. 
Robinson  v.  Litz,  123  N.  Y.  Supp. 
362;  Quinlan  v.  Westervelt,  65 
N.  Y.  Misc.  547,  120  N.  Y.  Supp. 
879;  Farquharson  v.  Brokaw,  67 
N.  Y.  Misc.  277,  124  N.  Y.  Supp. 
476. 

A  husband  may  show  in  de- 
fense to  an  action  for  necessaries 
supplied  to  the  wife  that  she  was 
well  and  sufficiently  supplied  with 
similar  articles.  Lichtenstein  Mil- 
linery Co.  v.  Peck,  59  N.  Y.  Misc. 
193,  110  N.  Y.  Supp.  410;  Oatman 
T.  Watrous,  120  N.  Y.  App.  Div. 
66,  105  N.  Y.  Supp.  174. 

97Merritt  v.  Seaman,  6  N.  Y. 
168. 

But  one  who  married  a  divorcee 
within  the  period  in  which  the 
latter's  remarriage  was  by  statute 


prohibited  and  therefore  void  was 
held  not  to  be  liable  for  her  den- 
tist's bill.  Rand  v.  Bogle,  197  111. 
App.  476. 

98  Scott  v.  Coxe,  20  Ala.  294. 

99  Lockwood     v.     Thomas,     12 
Johns.  248. 

The  husband's  pecuniary  cir- 
cumstances must  be  considered  in 
deciding  whether  the  amounts  ex- 
pended were  reasonable.  De  Brau- 
were  v.  De  Brauwere,  203  N.  Y. 
460,  96  N.  E.  Rep.  722,  38  L.  R. 
A.  N.  S.  508. 

Where  the  question  of  whether 
the  goods  were  necessary  or  suit- 
able to  the  wife's  station  of  life  is 
raised,  it  must  go  to  the  jury. 
Rosenfeld  v.  Peck,  149  N.  Y.  App. 
Div.  663,  134  N.  Y.  Supp.  392. 

Necessaries  are  to  be  measured 
by  a  husband's  pecuniary  ability 
or  resources  which  are  an  element 
to  be  considered  on  the  trial  where 
the  character  of  the  wife's  expend- 
itures is  in  question.  De  Brauwere 
v.  De  Brauwere,  203  N.  Y.  460,  96 
N.  E.  Rep.  722,  38  L.  R.  A.  N.  S. 
508. 

1  Usher  v.   Holleman,   5   N.   Y. 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE  513 

to  her,  plaintiff  must  show  that  the  allowance  was  insufficient. 
A  decree  of  divorce  on  the  ground  of  her  husband's  cruelty 
is  not  admissible  to  show  that  the  wife  was  justified  in  living 
apart  from  him,  and  therefore  carried  his  credit  with  her.2 

24.  Defenses. 

The  marriage  and  appropriate  character  of  the  articles 
supplied  having  been  shown,  the  burden  is  on  defendant  to 
rebut  the  presumption  of  agency  of  the  wife; 3  general  rep- 
utation is  competent  evidence  4  that  they  were  living  sep- 
arate under  articles  providing  for  her  support.  But  the 
receipts  of  third  persons  are  not  admissible  in  favor  of  de- 
fendant to  show  that  he  and  his  wife  lived  separate,  and  that 
he  allowed  her  a  separate  maintenance,  which  was  punctu- 
ally paid.  The  persons  who  gave  the  receipts  should  be 
called.5 

25.  Causes  of  Separation. 

On  the  question  whether  a  separation  of  husband  and  wife 
was  due  to  the  wife's  fault  or  the  husband's,  the  declarations 
of  the  wife  to  any  person,  made  in  sufficiently  immediate  con- 
nection with  the  act  of  leaving  to  constitute  a  part  of  the 
res  gestce  are  admissible.6  If  the  husband's  previous  cruelty 

Leg.  Obs.  99;  Johnson  v.  Sumner,  tice  to  the  plaintiffs  not  to  supply 

3  Hurls.  &  N.  261,  s.  c.,  27  L.  J.  the  goods.     Meyer  v.  Jewell,  88 

Exch.  341.  N.  Y.  Supp.  972. 

2  Belknap  v.   Stewart,  38  Neb.          The  fact  that  the  husband  kept 
304,  41  Am.  St.  Rep.  729,  56  N.  the    wife    amply    supplied    with 
W.  Rep.  881.  money  to  enable  her  to  pay  cash 

3  Keller  v.  Phillips,  39  N.  Y.  351,  is  a  matter  of  defense.    Rosenfeld 
affi'g  40  Barb.  391.  v.  Peck,  149  N.  Y.  App.  Div.  663, 

«  Baker  v.  Barney,  8  Johns.  72.  134  N.  Y.  Supp.  392. 

5  Cutbush  v.  Gilbert,  4  S.  &  R.  6  Thus  the  reasons  she  gave  to 

551.  her  father  the  day  of  her  return  to 

Where  husband  and  wife  are  him  on  leaving  her  husband,  are 

living  apart,  the  husband  in  de-  competent.  Johnson  v.  Sherwin, 

fending  an  action  against  him  for  3  Gray  (Mass.),  374.  See,  also, 

necessaries  supplied  to  her  is  not  Snover  v.  Blair,  25  N.  J.  L.  (1 

required  to  prove  that  he  gave  no-  Dutch.)  94;  Aveson  v.  Lord  Kin- 


514  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

is  relied  on  as  the  case  of  separation,  the  contemporaneous 
expressions  of  affection  and  regard  used  by  either  toward  the 
other  in  the  other's  presence,7  or  to  a  third  person,  in  the 
absence  of  the  other,8 — and,  on  the  same  principle,  the  wife's 
complaint  to  her  physician  of  the  effects  of  her  husband's 
violent  treatment,  and  his  advice  thereupon  that  she  should 
leave  him,9 — are  competent;  and  so  are  her  letters  mani- 
festing an  affection  inconsistent  with  such  cruel  treatment.10 
But  in  such,  case,  there  must  be  independent  evidence, 
beside  the  apparent  date  of  the  letter,  showing  that  it  was 
actually  written  at  a  period  that  would  make  the  declaration 
relevant.11  Where  her  infidelity  is  relied  on  as  explaining 
the  separation,  her  admissions  of  guilt  have  been  held  com- 
petent.12 If  a  divorce  is  relied  on,  the  decree  itself  is  the  best 
evidence; 13  and  a  decree  dismissing  the  suit  for  divorce  for 
want  of  proof  is  competent  but  not  conclusive  evidence  that 
the  cause  alleged  did  not  exist.14 

On  the  question  whether  the  provision  he  had  made  for  her 
was  sufficient,  her  declarations  made  while  she  was  in  the 
enjoyment  of  it,  are  competent  in  his  favor.15 

nard,  9  East,  188,  ELLENBOROUGH,  App.  Div.  801,   113  N.  Y.   Supp. 

J.;  Cattison  v.  Cattison,  22  Perm.  163. 

St.  275.    As  to  letters  written  dur-          8  See  Winter  v.  Wroot,  1  Moody 

ing   the   absence,   see   Rawson   v.  &  R.  404. 

Haigh,  2  Bing.  99.  9  See  Gilchrist  v.  Bale,  8  Watts, 

The    declarations    of    the    bus-  355. 

band  made  to  third  persons  as  to          10Houliston  v.  Smyth,  2  Carr. 

the    reason    for    abandoning    his  &  P.  22. 
wife  are  not  admissible.     Brison          n  Id. 

r.  McKellop,  41  Okl.  374,  138  Pac.          12  Walton  v.  Greene,  1  Carr.  & 

Rep.  154.  P.   621,   disapproved   in    1    Tayl. 

7  See  Edwards  v.  Crock,  4  Esp.  39.  Ev.  673,  §  695. 

The  declarations  of  a  wife  to  her          1S  Tice  v.  Reeves,  30  N.  J.  L. 

husband    tending    to    prove    her  314. 

adultery,    are    not    admissible    in          14Burlen  v.   Shannon,   3   Gray, 

evidence  in  an  action  by  the  hus-  387. 

band  for  alienation  of  his  wife's          "Jacobs     v.      Whitcomb,      10 

affections,    as    being    of    the    res  Cush.  255.     The  introduction  of 

gestce.    Hanor  v.  Housel,  128  N.  Y.  declarations    by    one    party    may 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE  515 

m.  ACTIONS  BY  A  MARRIED   WOMAN 

26.  Pleading  in  Her  Action  on  Contract. 

In  her  action  on  contract,  an  allegation  of  her  coverture 
is  not  necessary  in  her  complaint.16  especially  if  the  statute 
provides  that  she  may  sue  and  be  sued  as  if  sole.17  And  if 
her  complaint  does  allege  coverture,  the  contract  will  be 
presumed  to  have  been  within  her  capacity  if  it  may  have 
been  so,  without  allegation  of  the  facts  on  which  her  ca- 
pacity depends.18  Defendant's  denial  of  the  contract  does 
not  avail  to  raise  the  defense  of  her  coverture  when  she  made 
it.19  But  if  her  coverture  is  pleaded  in  defense  or  in  abate- 
ment, and  proved,  then  she  must  prove  the  facts  showing  her 
capacity  to  make  the  contract,20  or  to  sue,  as  the  case  may 
require, — such  as  separate  estate  21  or  business,22 — unless 
the  contract  itself  raises  a  presumption  that  it  was  made 
by  her  husband's  assent  in  a  case  where  it  would  be  valid 
at  common  law.23  Where  defendant  sets  up  a  contract 
made  by  her,  as  a  counterclaim  against  her,  she  must  allege 

justify  the  admission  of  declara-  19Westervelt  v.  Ackley,  62   N. 

tions  of  the  other  in  the  same  con-  Y.  505,  affi'g  2  Hun,  258,  s.  c.,  4 

versation.     See  Sherwood  v.  Tit-  Supm.  Ct.  (T.  &  C.)  444. 

man,  55  Penn.  St.  77.  20  See  Nash  v.  Mitchell,  3  Abb. 

16  Peters  v.  Fowler,  41  Barb.  467.  New  Cas.  171.    And,  on  the  same 
It  is  not  necessary  for  a  married  principle,  if  a  wife  sues  alone,  not 

woman  to  allege  in  her  declaration  by  authority  of  the  statute,  but 

that  the  subject-matter  of  the  suit  by  virtue  of  the  common-law  rule, 

relates  to  her  separate  estate  and  where  her  husband  has  left  the 

that    she    is    a    married    woman.  State  and  so  utterly  deserted  her 

Fiske  v.  Bigelow,  9  D.  C.  427;  Hu-  and  renounced  his  marital  rights 

bert  v.  Fera,  99  Mass.  198,  96  Am.  as  to  enable  her  to  contract  as  if 

Dec.  732;  Young  v.  Hart,  101  Va.  sole,  the  burden  of  proof  is  upon 

480,  44  S.  E.  Rep.  703;  Smith  v.  the  one  alleging  the  validity  of  the 

Dunning,  61  N.  Y.  249.  contract  to  establish  that  she  is 

17  N.  Y.  Code  Civ.  Pro.,  §  450;  within  the  exception.    See  Gregory 
Hier  v.   Staples,   51   N.   Y.    136;  v.  Pierce,  4  Mete.  478. 
Frecking  v.  Holland,  53  Id.  422.  21  Paragraph  9. 

18  Nininger  v.  Commissioners  of  22  Paragraph  16. 

Carver,  10  Minn.  133.  23  Borst  v.  Spelman,  4  N.  Y.  284. 


516 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


coverture,  for  coverture  as  a  defense,  even  if  proved,  is  not 
available  unless  pleaded.24 

27.  Evidence  of  the  Contract. 

The  making  of  a  note,25  mortgage,26  bill  of  lading,27  or  other 
security,28  to  a  married  woman,  is  prima  fade  evidence 
against  the  contracting  party  w  of  her  title  and  right  to  sue 
thereon. 

The  husband's  receipt  for  his  wife's  separate  property 
will  not  discharge  a  third  person  from  liability  to  the  wife, 
unless  upon  the  ground  of  agency.30 

28.  Her  Action  for  Tort. 

In  a  married  woman's  action  for  injuries  to  her  person, 
to  enable  her  to  recover  for  disqualification  to  labor,  etc., 


"Westervelt  v.  Ackley,  62  N. 
Y.  505. 

If  the  defense  of  coverture  is 
not  pleaded  it  cannot  be  consid- 
ered. Chadron  Banking  Co.  v. 
Mahoney,  43  Neb.  214,  61  N.  W. 
Rep.  594. 

If  resort  is  had  to  the  defense  of 
coverture  notice  in  writing  must 
be  filed  at  the  time  of  pleading. 
Monson  v.  Beecher,  45  Conn.  299. 

Where  a  tradesman  sells  and  de- 
livers goods  to  a  married  woman, 
and  then  sues  her  for  non-pay- 
ment, she  will  not  be  allowed  to 
prove  that  she  is  a  married  woman 
and  that  she  bought  the  goods  for 
her  husband  and  family  unless  she 
pleads  such  defense  in  her  answer. 
Minners  v.  Smith,  40  N.  Y.  Misc. 
648,  83  N.  Y.  Supp.  117. 

25  Borst  v.  Spelman,  4  N.  Y.  284. 
And  the  fact  that  the  money  was 
loaned  by  her  husband  does  not 
rebut  this  presumption.  Tooke 
j.  Newman,  75  111.  215.  217. 


26  Wolfe  v.  Scroggs,  4  Abb.  Ct. 
App.  Dec.  634. 

27  Thus  a  carrier  who  gives  re- 
ceipt to  a  married  woman  is  held 
estopped  from  denying  her  title. 
Chicago,  &c.,  R.  R.  Co.  v.  Shea, 
66  111.  471,  480. 

28  Compare    Rouillier   v.    Wern- 
icki,  3  E.  D.  Smith,  310. 

29  And  against  her  husband  if  he 
assented   to   her   so   doing.     The 
fact  that  the  plaintiff,  a  feme  cov- 
ert, had  for  some  years  lived  apart 
from  her  husband,  who  did  noth- 
ing for  her  support,   is  evidence 
from  which  a  jury  may  infer  that 
the  contract  sued  upon  was  made 
by  her  on  her  separate  account. 
Burke    v.    Cole,    97    Mass.    113. 
Whether  evidence  of  other  trans- 
actions between  her  and  the  de- 
fendant is  competent  to  show  that 
she    dealt    on    her    separate    ac- 
count,   see    Fowle    v.    Tidd,    15 
Gray  (Mass.),  94. 

30  Schouler's  Dom.  Rel.  233. 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


517 


she  must  show  the  existence  of  a  separate  business;  otherwise 
the  damages  for  inability  to  labor  belong  to  her  husband.31 


31  Filer  v.  N.  Y.  Central  R.  R. 
Co.,  49  N.  Y.  47,  56.  "Presump- 
tively, damages  for  negligently 
diminishing  the  earning  capacity 
of  a  married  woman  belong  to  her 
husband,  and,  when  she  seeks  to 
recover  such  damages,  the  com- 
plaint must  contain  an  allegation 
that  for  some  reason  she  is  entitled 
to  the  fruits  of  her  own  labor;  or, 
if  she  seeks  to  recover  damages 
for  an  injury  to  her  business,  she 
must  allege  that  she  was  engaged 
in  business  on  her  own  account, 
and  by  reason  of  the  injury  was 
injured  therein  as  specifically  set 
forth."  Uransky  v.  Dry  Dock, 
&c.,  R.  Co.,  118  N.  Y.  304,  308, 
23  N.  E.  Rep.  451. 

Where  a  married  woman  re- 
ceives personal  injuries  in  conse- 
quence of  the  negligence  of  an- 
other, two  causes  of  action  arise: 
one  to  her  for  the  pain  and  suf- 
fering to  which  she  is  thereby 
subjected,  and  the  other  to  the  hus- 
band for  the  loss  to  him  of  her  ser- 
vice and  society  and  the  expense 
incurred  by  him  in  the  treatment 
of  her  injuries.  Wallis  v.  West- 
port,  82  Mo.  App.  522;  Gross  v. 
Gross,  70  W.  Va.  317,  73  S.  E.  Rep. 
961;  Jaynes  v.  Jaynes,  39  Hun,  40. 

In  a  suit  by  a  married  woman 
for  personal  injuries  no  recovery 
can  be  had  by  her  for  the  diminu- 
tion of  her  physical  ability  to  per- 
form the  ordinary  duties  of  the 
household.  Norfolk  Ry.,  etc., 
Co.  v.  Williar,  104  Va.  679,  52  S. 
E.  Rep.  380. 


A  married  woman  may  recover 
for  her  disqualification  to  attend 
to  her  business  affairs  or  transac- 
tions. Normile  v.  Wheeling  Trac- 
tion Co.,  57  W.  Va.  132,  49  S.  E. 
Rep.  1030,  68  L.  R.  A.  901. 

The  husband  is  allowed  to  re- 
cover for  the  loss  of  the  wife's 
services,  and  she  cannot  include 
in  her  damages  any  loss  of  time 
wherein  she  might  have  rendered 
him  service.  But  that  will  not 
prevent  her  from  recovering  for 
all  those  things  which  injure  her, 
apart  from  a  mere  loss  of  service 
and  society  to  which  her  husband 
is  entitled.  Physical  disability  is 
a  personal  loss  apart  from  being  a 
deprivation  of  a  money-earning 
power.  Cullar  v.  Missouri,  etc., 
R.  Co.,  84  Mo.  App.  340;  Jordan 
v.  Middlesex  R.  Co.,  138  Mass.  425. 

Where  a  married  woman  has  a 
business  of  her  own,  the  impair- 
ment of  her  ability  to  work  in  the 
business  is  a  proper  element  of  her 
damages  for  the  injury  which 
caused  it.  Perrigo  v.  St.  Louis, 
185  Mo.  274,  84  S.  W.  Rep.  30. 

In  a  suit  by  a  married  woman 
for  personal  injuries  she  cannot 
recover  for  her  loss  of  time  unless 
it  be  shown  that  she  has  a  business 
or  employment  apart  from  her 
husband.  Denton  v.  Ordway,  108 
Iowa,  487,  79  N.  W.  Rep.  271. 

Where  a  married  woman  who 
followed  no  separate  or  independ- 
ent employment,  sues  for  personal 
injuries,  her  husband,  and  not 
she,  is  entitled  to  recover  for  med- 


518 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


So  to  enable  her  to  recover  expenses  of  medical  attendance, 
etc.,  she  must  show  that  they  were  paid  from  or  charged 
upon  her  separate  property.32  Where  she  is  living  apart 


ical  services  not  previously  paid 
for  by  her,  and  the  value  of  the 
time  lost  by  reason  of  the  injuries 
received.  Elenz  v.  Conrad,  115 
Iowa,  183,  88  N.  W.  Rep.  337. 

Damages  resulting  from  per- 
sonal injuries  to  the  wife,  do  not 
fall  into  the  community,  but  inure 
to  her  separate  benefit,  and  the  ac- 
tion for  their  recovery  should  be 
brought  by  the  wife,  with  the  us- 
ual authorization  of  the  husband 
or  court.  Martin  v.  Derenbecker, 
116  La.  Ann.  495,  40  So.  Rep. 
849. 

In  an  action  by  husband  and 
wife  to  recover  damages  for  in- 
juries received  by  the  wife,  the 
jury  cannot  bring  in  a  verdict  in 
favor  of  the  wife  alone,  but  must 
make  it  run  to  both  husband  and 
wife.  Giffen  v.  Lewiston,  6  Idaho, 
231,  55  Pac.  Rep.  545. 

"Moody  v.  Osgood,  50  Barb. 
628. 

Charges  for  medical  services 
whether  paid  or  not  are  a  legiti- 
mate constituent  of  the  damage 
sustained  by  a  married  woman  in 
a  suit  for  personal  injuries  and  she 
may  recover  whether  her  husband 
might  have  been  liable  for  such 
charges  or  not.  Adams  Express 
Co.  v.  Aldridge,  20  Colo.  App.  74, 
77  Pac.  Rep.  6. 

A  married  woman  may  recover 
the  expenses  of  medical  attend- 
ance in  an  action  for  personal  in- 
juries. West  Chicago  St.  Ry.  Co, 


v.  Carr,  170  111.  478,  48  N.  E.  Rep. 
992. 

A  married  woman,  who  is  living 
with  her  husband,  cannot  recover 
for  medical  services  and  nursing 
made  necessary  for  personal  in- 
juries sustained  by  her.  State  v. 
Detroit,  113  Mich.  643,  72  N.  E. 
Rep.  8. 

In  the  absence  of  an  express  con- 
tract on  the  part  of  a  married 
woman  to  pay  for  medical  treat- 
ment of  her  personal  injuries,  her 
husband  alone  can  recover  for  such 
expense.  McLean  v.  Kansas  City, 
81  Mo.  App.  72. 

A  married  woman  cannot  re- 
cover the  costs  of  her  cure  of  per- 
sonal injuries  unless  it  be  averred 
and  proved  that  she  paid  such 
costs  out  of  her  separate  estate. 
Atlantic,  etc.,  R.  Co.  v.  Ironmon- 
ger, 95  Va.  625,  29  S.  E.  Rep.  319. 

An  instruction  to  the  jury  au- 
thorizing the  assessment  of  dam- 
ages on  account  of  medical  treat- 
ment in  an  action  by  a  married 
woman  is  erroneous.  Efroymson 
v.  Smith,  29  Ind.  App.  451,  63  N. 
E.  Rep.  328. 

A  married  woman  who  lives 
with  her  husband  cannot  recover 
for  medical  services  rendered  to 
her  for  injuries  sustained  through 
negligence  of  defendant  railway. 
Kimmel  v.  Interurban  St.  Ry.  Co., 
87  N.  Y.  Supp.  466. 

A  married  woman,  living  with 
her  husband,  and  not  possessed  of 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


519 


from  her  husband,  it  is  not  permissible  to  show  that  he  con- 
tributes nothing  towards  her  support.33 


IV.  ACTIONS  AGAINST  HER 

29.  Pleading  in  Action  Against  Her  on  Contract. 

The  complaint  in  an  action  upon  a  contract  executed  by  a 
married  woman,  whether  against  her  alone,  or  her  husband 
with  her,34  need  not  allege  her  coverture,  nor  that  the  con- 
tract was  executed  in  her  business,  or  for  the  benefit  of  her 
separate  estate,35  even  if  it  appear  by  the  contract  that  she 
was  married; 36  nor  need  the  complaint  ask  judgment  charg- 
ing her  separate  estate,  but  the  complaint  may  be  framed  as 
if  defendant  was  a  feme  sole.37  Her  coverture  is  matter  of 


any  private  means  or  engaged  in 
any  separate  business  cannot  re- 
cover expenses  for  medical  attend- 
ance necessitated  as  the  result  of 
injuries  received  through  the  neg- 
ligence of  a  street  railroad  corn- 
pan}'.  Sweeny  v.  Union  Ry.  Co., 
31  N.  Y.  Misc.  472,  64  N.  Y.  Supp. 
453. 

"Burleson  v.  Village  of  Read- 
ing, 110  Mich.  512,  68  N.  W.  Rep. 
294. 

"Broome  v.  Taylor,  13  Hun, 
341. 

35Hier  v.  Staples,  51  N.  Y.  136; 
Frecking  v.  Rolland,  53  Id.  422, 
rev'g  33  Super.  Ct.  (J.  &  S.)  499. 

In  an  action  against  a  married 
woman  coverture  need  not  be 
pleaded.  Dickey  v.  Kalfsbeck,  20 
Ind.  App.  290,  50  N.  E.  Rep.  590. 

A  declaration  against  a  married 
woman  which  does  not  aver  that 
she  owns  a  separate  estate  is  de- 
murrable.  Hirth  v.  Hirth,  98  Va. 
121,348.  E.  Rep.  964. 

A  complaint   which  fails  to  al- 


lege that  the  agricultural  supplies 
furnished  to  a  married  woman 
were  for  the  benefit  of  her  separate 
estate  is  demurrable.  Compare 
Simon  v.  Sabb,  56  S.  C.  38,  33  S.  E. 
Rep.  799. 

"Schofield  v.  Hustis,  9  Hun, 
157. 

In  an  action  against  a  married 
woman  it  is  not  necessary  to  al- 
lege in  the  complaint  that  she  is 
such.  Smoot  v.  Judd,  184  Mo.  508, 
83  S.  W.  Rep.  481. 

"This  is  the  rule  under  the  N. 
Y.  statute,  allowing  her  to  sue  and 
be  sued  as  if  sole.  It  has  elsewhere 
been  held  that  if  coverture  appear 
by  the  pleadings,  it  must  appear 
that  she  has  a  separate  property 
or  business,  such  that  she  had 
power  to  contract;  Jonz  v.  Gugel, 
26  Ohio  St.  529;  and  that  the  con- 
sideration of  the  contract  was  such 
as  to  sustain  it;  Pollen  v.  James, 
45  Miss.  132;  Griffin  v.  Ragan,  52 
Id.  81;  and  see  Melcher  v.  Kuh- 
land,  22  Cal.  522;  and  her  intent 


520  ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 

defense  to  be  pleaded  by  defendant  if  available; 38  and  evi- 
dence that  she  was  a  married  woman  and  could  not  con- 
tract, is  not  admissible  under  a  denial  of  the  contract.39  The 
plaintiff  may  prove  the  contract  as  alleged,  and  rest,40  unless 
defendant  has  pleaded  coverture  and  the  fact  appears  by 
plaintiff's  case.  If  so,  or  if  defendant  thereupon  proves 
coverture  under  his  answer,  the  burden  is  cast  upon  the 
plaintiff  to  prove  a  case  within  the  statute.41 

30.  Evidence  of  the  Contract. 

If  coverture  is  pleaded  as  a  defense,  the  proof  of  the  con- 
tract involves  two  elements, — 1,  the  fact  that  it  was  made; 
and  2,  her  power  to  make  it;  and  the  facts  showing  her  power 
must  be  affirmatively  proved  on  the  trial,42  as  well  as  the 
making  of  the  contract  itself,  although  they  need  not  be 
alleged  in  the  complaint. 

31.  The  Making  of  the  Contract. 

The  rules  of  proof,  elsewhere  stated  as  applicable  to  the 
contracts  of  other  persons,  generally  apply  to  the  fact  of 
contract  by  a  married  woman,  whether  in  respect  to  implied 
contracts,43  parol  agreements,44  or  to  parol  evidence  to  vary 
a  writing.45  To  establish  a  contract  made  through  the 
agency  of  the  husband,  it  may,  as  in  the  case  of  other  per- 
sons, be  shown  to  be  within  his  express  power,46  or  within  the 
authority  implied  from  her  having  held  him  out,47  or  suf- 

to  charge  separate  property.    Shan-  New  Cas.  171;  Tracy  v.  Keith,  11 

non     v.     Bartholomew,     53     Ind.  Allen  (Mass.),  214. 

54.  42  Nash  v.  Mitchell,  3  Abb.  New 

38  Smith  ».  Dunning,  61  N.  Y.  Cas.  171. 

249;  Freckling  v.  Holland  (above).  43  See  Bodine  v.  Killeen,  53  N. 

39  Westervelt  v.  Ackley,   62   N.  Y.  93;  and  paragraph  6  (above). 
Y.  505,  affi'g  2  Hun,  258,  s.  c.,  4  44  See  Fowler  v.  Seaman,  40  N. 
Supm.  Ct.  (T.  &  C.)  444.  Y.  592. 

40  Downing  v.  O'Brien,  67  Barb.  4S  Galusha  v.  Hitchcock,  29  Barb. 
582.  193. 

41  Id.;  Nash  v.  Mitchell,  3  Abb.  «  Nash  v.  Mitchell  (above). 

47  Bodine  v.  Killeen  (above). 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


521 


fered  him  to  assume  the  power,  or  from  her  having  recog- 
nized his  acts. 48  The  presumption  of  agency  derived  from  his 
possession  of  an  instrument  executed  by  her  is  limited  by  the 
terms  of  the  instrument.49  On  the  question  whether  the 
other  party  gave  credit  to  her  or  to  him,  entries  by  such 
other  party  in  account  charging  or  crediting  sums  to  either, 
are  not  evidence  in  his  own  favor,  unless  part  of  the  res 
gestce  of  an  act  properly  in  evidence.50  They  are  competent 
as  against  him;  but  are  not  conclusive  that  the  credit  was 
given  to  the  one  charged.51 

The  appropriate  evidence  of  her  power  to  contract,— 
viz.,  the  existence  of  separate  business  or  estate, — has  al- 
ready been  explained.52  Whether  anything  more  need  be 
shown  is  disputed. 

32.  The  English  Rule  as  to  Charging  Separate  Estate. 

The  rule  now  applied  by  the  English  courts,  and  in  several 
of  our  States,53  is,  that  the  separate  estate  of  a  married 


«  Wilcox  &  Gibbs  Co.  v.  Elliott, 
14  Hun,  16. 

49  Thus  a  power  to  sign  and  in- 
dorse  checks,  etc.,   does   not  au- 
thorize him  to  charge  her  separate 
estate  by  a  postdated  check,  when 
she  has  not   the   funds  in  bank. 
Nash   v.   Mitchell    (above).     And 
her  deed   expressing   a   pecuniary 
consideration,  he  is  not  impliedly 
authorized  to  deliver,  without  pay- 
ment of  the  consideration,  and  for 
his  own  benefit.    Bank  of  Albion 
v.  Burns,  46  N.  Y.  170. 

50  Peters  v.  Fowler,  41  Barb.  467. 
But  see  pp.  297,  302  of  this  vol. 

61  Allen  r.  Fuller,  118  Mass.  402. 
On  the  question  whether  goods 
were  bought  by  the  husband,  de- 
ceased, or  the  wife,  who  had  a  sep- 
arate business,  the  executor  can- 
not give  in  evidence  that  the  wife, 


after  the  death,  appropriated  the 
goods  to  her  own  use.  Johnson 
v.  Hawkins,  5  Reporter,  184.  So 
the  fact  that  plaintiff  had  brought 
a  prior  suit  for  the  same  against 
the  defendant  and  her  husband 
jointly,  which  has  been  discontin- 
ued, is  competent;  but  the  plain- 
tiffs may  explain  this  by  showing 
that  the  husband  was  joined 
through  an  error  of  their  attorney. 
Andrews  v.  Matthews,  6  Cent.  L. 
J.  156. 

52  Paragraphs  9  to  17. 

53  This    rule    has    been    to    a 
greator  or  less  extent,  or  with  some 
qualification,   recognized   in   Kan- 
sas (Deering  v.  Boyle,  8  Kan.  529; 
Wicks  v.  Mitchell,  9  Id.  80);  Mary- 
land (Hall  v.  Eccleston,  37  Md. 
510;  and  see  Conn  v.  Conn,  1  Md. 
Ch.  Decis.  212);  Missouri  (Metro- 


522 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


woman  is  answerable  for  all  her  debts  and  engagements, 
to  the  full  extent  to  which  it  is  subject  to  her  own  disposal; 54 
and  this  rule,  formerly  regarded  as  matter  of  presumption, 
resting  on  the  idea  that  the  act  of  contracting  is  prima  fade 
evidence  of  intent  to  charge  her  estate,55  is  now  applied  in- 
flexibly to  written  obligations,  as  a  rule  of  law;  in  other 
words,  the  making  of  a  written  contract  by  a  married 
woman  having  power  to  charge  a  separate  estate  is  deemed 
conclusive  evidence  of  intent  to  charge  it.56 

33.  The  American  Rule. 

But  the  general  rule,  which  in  the  absence  of  a  statute 
prevails  in  the  United  States,57  is,  that  to  charge  the  sep- 
arate estate  of  a  married  woman  with  a  debt  not  contracted 
for  its  benefit, — as,  for  instance,  where  she  contracts  as 


politan  Bank  v.  Taylor,  62  Mo. 
338);  Ohio  (Phillips  v.  Graves,  20 
Ohio  St.  390);  Wisconsin  (Todd 
v.  Lee,  15  Wise.  365,  16  Id. 
480). 

In  Mississippi,  it  has  been  held 
that  the  intent  must  appear,  but 
need  not  be  expressed  (Boarman 
v.  Groves,  23  Miss.  280).  In  Al- 
abama (Brarae  v.  McGee,  46  Ala. 
170);  Arkansas  (Dobbin  v.  Hub- 
bard,  17  Ark.  189,  196) ;  and  Ken- 
tucky (Lillard  v.  Turner,  16  B. 
Mon.  374;  Burch  v.  Breckinridge, 
16  Id.  482),  the  English  rule  has 
been  applied  in  the  case  of  bills  in 
equity  to  charge  a  separate  estate 
held  under  the  rules  of  equity,  and 
not  under  the  statute. 

54  As    stated    by    HOAR,    J.,    in 
Willard  v.  Eastham,  15  Gray,  328, 
approved  by  REDFIELD,  J.,  in   1 
Am.  L.  Reg.  N.  S.  665,  note. 

55  Johnson  v.  Gallagher,  7  Jur. 
N.  S.  273;  Schouler's  Dom.  Rel. 
228. 


66  Metropolitan  Bank  v.  Taylor, 
62  Mo.  338;  Wicks  v.  Mitchell,  9 
Kan.  80. 

67  This  rule  has  been  recognized 
in  California  (Maclay  v.  Love,  25 
Cal.    367);    Connecticut    (Platt    v. 
Hawkins,  43  Conn.   139);  Illinois 
(Williams  v.  Hugunin,  69  111.  214; 
Furness  v.  McGovern,  78  Id.  337); 
Indiana  (Kantrowitz  v.  Prather,  31 
Ind.  92;  Smith  v.  Howe,  31  Id.  233; 
Hodson    v.    Davis,    43    Id.    258); 
Massachusetts  (Willard  v.  Eastham, 
15  Gray,  328);  New  Jersey  (Arm- 
strong v.  Ross,  20  N.  J.  Eq.  109); 
Tennessee   (Letton  v.   Baldwin,   8 
Humph.    209,    10    Id.    552).      In 
Missouri,  where  it  was  once  ap- 
proved (Miller  v.  Brown,  47  Mo. 
504,  s.  c.,  4  Am.  R.  345),  it  has 
since  been   abandoned.     In   Ala- 
bama, the  English  rule  has  been 
held  not  applicable  where  the  con- 
sideration was  purely  for  the  ben- 
efit of  the  husband  (Nunn  v.  Giv- 
han,  45  Id.  370,  375). 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE  523 

surety,— there  must  be  direct  evidence  of  an  intention  to 
charge  it.  Her  mere  making  of  a  note  or  other  obligation 
is  not  enough;  and  if  such  obligation  be  made,  the  intent 
to  charge  must  be  expressed  therein,  or  in  a  connected  in- 
strument; 58  and  if  not  so  expressed,  parol  evidence  is  not 
competent  to  prove  the  intent  to  charge.59  Evidence  that 
the  husband  received  the  consideration  of  the  obligation, 
and  used  it  in  managing  his  and  the  wife's  property,  is  not 
enough.60  Where  the  contract  is  by  parol,  the  intent  to 
charge  may  be  proved  by  parol,  if  no  specific  lien  is  claimed;61 
and  it  may  be  shown  by  such  circumstances  as  her  having 
an  estate,  on  the  faith  of  which  she  was  trusted,  and  by 
her  promise  to  pay  as  soon  as  she  received  income  there- 
from.62 But  in  the  absence  of  other  evidence  of  an  intent 
to  charge,  it  will  not  be  inferred  from  her  subsequent  ad- 
missions of  liability.63 

34.  — Direct  Benefit  to  Separate  Estate. 

If  it  appears  that  she  had  a  separate  business,  and  the 
contract  was  made  in  the  course  and  pursuit  of  it,  this  is 

58  Sherwood  v.  Archer,  10  Hun,      its  execution  that  it  was  not  to 
73.  bind  her  separate  property  is  in- 

A  promissory  note  made  by  a  admissible  (7  B.  Mon.  293);  and 

married  woman  does  not  raise  a  so  of  her  testimony  that  she  did 

presumption  either  of  consideration  not  intend  it  to,  and  equally  of 

or  of  her  intention  to  bind  her  sep-  that  of  the  creditor  that  at  the 

arate  estate;  the  burden  of  proof  time  he  was  ignorant  that  she  had 

is  upon  the  holder  of  the  note  to  a  separate  estate.    Kimm  v.  Weip- 

show  that  she  intended  to  bind  her  pert,  46  Mo.  532,  s.  c.,  2  Am.  R. 

separate  estate.    Farmers'  Bk.  v.  541. 

Boyd,  67  Neb.  497,  93  N.  W.  Rep.  6°  Yale    v.    Dederer,    68    N.   Y. 

676.  329. 

59  Yale  v.  Dederer,  18  N.  Y.  265,  61  Maxon  v.  Scott,  55  N.  Y.  247; 
22  N.  Y.  450;  Willard  v.  Eastman,  Baker    v.    Lamb,    11    Hun,    519. 
15  Gray,  328;  Manhattan  Brass,  Contra,  Shorter  v.  Nelson,  4  Lans. 
&c.,  Co.  v.  Thompson,  58  N.  Y.  80.  114. 

It  has  been  held  elsewhere,  that  if  62  Conlin  v.  Cantrell,  64  N.  Y. 

there  is  a  written  contract  by  the  217. 

married  woman,  parol  evidence  of  63  Hansee  v.  De  Witt,  63  Barb, 

her   declarations   at   the   time   of  53. 


524 


ACTIONS   BY   OR   AGAINST   HUSBAND   OR   WIFE 


enough.  If  it  appears  that  she  had  a  separate  property, 
and  the  contract  was  made  for  its  direct  benefit,  in  the  legal 
sense,  this  is  enough.  The  fact  that  such  kind  of  contracts 
may  in  the  ordinary  course  of  affairs  be  made  for  the  bene- 
fit of  an  estate,  is  not  enough,  for  the  court  cannot  presume 
that  a  simple  contract,  with  nothing  on  its  face  to  indicate 
the  fact,  was  made  for  the  benefit  of  her  separate  estate; 64 
but  it  must  appear  either  that  the  consideration  was  actu- 
ally applied  to  her  estate,65  or  came  actually  to  her  hands, 
or  to  those  of  an  agent  authorized  to  receive  it  on  her  be- 
half.66 The  fact  that  the  consideration  came  to  her  hands  is 
presumptive  evidence  that  the  contract  was  for  the  benefit 
of  the  estate;  and  the  production  of  her  personal  receipt,67 
or  of  her  order  to  pay  a  third  person,  with  proof  of  payment 
to  him,68  is  presumptive  evidence  of  this;  and  proof  of  pay- 
ment to  her  husband,  if  he  were  shown  to  be  her  general 
financial  agent,  might  also  be  prima  facie  enough.69  Such 


64  Nash  v.  Mitchell  (above). 

An  endorsement  on  a  promissory 
note  by  a  married  woman  to  the 
effect  that  it  is  made  for  the  ben- 
efit of  her  separate  estate,  will  not 
sustain  a  recovery  against  her  un- 
less it  be  shown  that  the  transac- 
tion was  necessary  and  convenient 
for  the  use  and  enjoyment  of  her 
separate  estate,  or  the  carrying  on 
of  her  separate  business,  or  in  re- 
lation to  her  personal  services. 
Ritter  v.  Bruss,  116  Wis.  55,  92 
N.  W.  Rep.  361. 

65  As,  for  instance,  by  exonerat- 
ing it  from  an  incumbrance,  or  by 
a  purchase. 

The  words:  "I  hereby  bind  my 
separate  estate"  endorsed  and 
signed  by  a  married  woman  upon 
a  promissory  note  are  sufficient  to 
make  the  note  a  charge  upon  her 
estate,  whether  her  liability  on  the 


note  is  that  of  a  surety  or  not. 
National  Exchange  Bk.  v.  Cum- 
berland Lumber  Co.,  100  Tenn. 
479,  47  S.  W.  Rep.  85. 

In  order  to  recover  on  a  con- 
tract against  a  married  woman,  it 
must  be  shown  that  it  was  made 
for  her  separate  estate.  Darwin  v. 
Moore,  58  S.  C.  164,  36  S.  E.  Rep. 
539. 

66  See   Williamson   v.   Dodge,   5 
Hun,  497,  499;  White  v.  McNett, 
33  N.  Y.  371. 

67  Treadwell  v.  Hoffman,  5  Daly, 
210. 

68  Prendergast  v.  Borst,  7  Lans. 
489. 

89  White  ».  McNett,  33  N.  Y. 
371.  But  a  husband's  declara- 
tions that  she  received  it  for  the 
use  of  her  separate  estate,  are  not 
competent,  in  the  absence  of  evi- 
dence that  he  was  authorized  to 


ACTIONS   BY   OK    AGAINST   HUSBAND    OR   WIFE  525 

evidence  may  be  rebutted  by  her  testimony,  or  other  evi- 
dence, that  the  consideration  neither  came  to  her  hands  nor 
those  of  her  authorized  agent,  nor  was  applied  to  the  use  of 
her  estate.70  But  if  once  received  by  her,  the  fact  that  she 
handed  it  to  her  husband,  who  misappropriated  it,  does  not 
impair  her  liability.71  And,  generally,  the  fact  that  in  the 
particular  case  the  contract  proved  the  reverse  of  beneficial, 
in  a  business  sense,  is  not  material.72  The  circumstance  that 
work  was  done  or  materials  were  used  for  the  improvement 
of  her  estate,  if  shown  to  have  been  within  her  knowledge, 
does  not  raise  a  conclusive  presumption  against  her,73  but 
will  sustain  a  verdict.  Evidence  that  the  land  belonged  to 
her  and  her  husband  as  tenants  in  common,  does  not  impair 
her  liability.74  If  such  a  claim  rests  on  an  allegation  of  rati- 
fication, it  must  appear, — 1.  That  credit  was  not  given  to 
the  husband  alone.  2.  That  she,  with  full  knowledge  that 
the  materials,  etc.,  were  received  unpaid  for,  and  used  for 
her  property  to  the  enhancement  of  its  value,  acquiesced  in 
such  use.75 

35.  Action  Against  Her  for  Necessaries. 

To  charge  her  or  her  separate  estate  for  family  neces- 
saries purchased  while  residing  with  her  husband,  there  must 
be  evidence — 1.  Of  her  separate  estate  or  business.  2. 
That  the  credit  was  given  to  her.  3.  That  she  intended  to 

make  such  declarations.  Deck  v.  n  Smith  v.  Kennedy,  13  Hun,  9. 
Johnson,  1  Abb.  Ct.  App.  Dec.  "Thus  she  is  liable  for  her  at- 
497.  torney's  fees,  though  the  litigation 
70  While  v.  McNett  (above),  was  unsuccessful.  Owen  v.  Caw- 
Where  the  contract  was  her  joint  ley,  36  N.  Y.  600,  affi'g  13  Abb. 
obligation  with  her  husband,  ev-  Pr.  13. 

idence  that  her  authorized  messen-  73  Westgate  v.  Munroe,  100  Mass, 

ger  received  the  money,  but  imme-  227,  2  Bish.  Mar.  W.,  §  218. 

diately  delivered  it  to  the  husband,  74Burr  v.  Swan,  118  Mass.  588. 

and  that  the  wife  never  received  But  both  may  be  held  jointly  lia- 

it,  is  sufficient  to  rebut  the  pre-  ble.    Verill  v.  Parker,  65  Me.  578. 

sumption  of  benefit  to  her  estate.  "  Miller    v.    Hollingsworth,    36 

Prendergast  v.  Borst,  7  Lans.  489.  Iowa,  165. 


526 


ACTIONS   BY   OK   AGAINST   HUSBAND    OR   WIFE 


charge  her  estate.     4.  That  the  goods  were  suitable  and 


76 


necessary. 

36.  Action  Against  Her  for  Fraud. 

The  wife  can  take  no  advantage  by  a  contract  fraudulently 
made  by  her  husband  as  her  agent,  in  the  use  of  her  separate 
property; 77  and  such  a  fraud  by  her  agent  may  be  imputed 
to  her,  by  the  rules  of  evidence  applicable  to  transactions  of 
principal  and  agent.78 


76  Wells'  Sep.  Prop,  of  M.  W. 
455;  Demott  v.  McMullen,  8  Abb. 
Pr.  N.  S.  335;  Smith  v.  Allen,  1 
Lans.  101.  And  see  Schooler's 
Dom.  Rel.  79. 

The  law  presumes  that  the  hus- 
band supports  the  family,  he  be- 
ing under  a  legal  duty  to  do  so, 
and  consequently  a  wife's  personal 
estate  cannot  be  made  liable  for 
necessaries  supplied  to  the  family 
in  the  absence  of  any  proof  of  an 
extension  of  credit  given  to  her  on 
account  of  her  estate.  Anderson 
v.  Davis,  55  W.  Va.  429,  47  S.  E. 
Rep.  157. 

In  order  to  charge  the  wife  for 
necessaries  there  must  be  evidence 
of  her  separate  estate  and  that  the 
goods  were  necessaries.  Moran  v. 
Montz,  175  Mo.  App.  360,  162  S. 
W.  Rep.  323. 

A  married  woman  may  by  ex- 
press agreement  charge  herself 
personally  for  necessaries  supplied. 
Valois  v.  Gardner,  122  N.  Y.  App. 
Div.  245,  106  N.  Y.  Supp.  808. 

In  order  to  recover  against  a 
married  woman  for  necessaries 
furnished  to  her,  it  must  be  proved 
that  the  credit  was  given  to  her 
acting  in  her  own  behalf  and  not 


as  agent  for  her  husband.  Blend- 
ermann  v.  Wray,  62  N.  Y.  Misc. 
606,  115  N.  Y.  Supp.  1081. 

When  the  liability  of  the  wife's 
separate  estate  is  claimed,  the 
necessity  for  the  transaction  by 
which  it  is  proposed  to  bind  it 
must  be  found  by  the  jury  from 
all  the  evidence.  Wright  v.  Mer- 
riwether,  51  Ala.  183. 

77  Adams  v.  Mills,  60  N.  Y.  533, 
affi'g  38  Super.  Ct.  (J.  &  S.)  16. 

78Vanneman  v.  Powers,  7  Lans. 
181.  Otherwise  if  the  property 
was  not  her  separate  estate.  Id. 
56  N.  Y.  42;  Du  Flon  v.  Powers, 
14  Abb.  Pr.  N.  S.  395. 

Where  money  is  loaned  to  a 
married  woman  on  representations 
made  by  her  husband  in  her  pres- 
ence, her  separate  estate  will  be 
bound  to  answer  for  it.  McVey 
v.  Cantrell,  70  N.  Y.  295,  26  Am. 
Rep.  605. 

If  a  married  woman  obtained 
money  representing  that  it  was 
for  herself  individually,  and  for 
her  separate  estate,  she  will  not  be 
heard  to  defend  on  the  ground 
that  her  husband  persuaded  her 
to  take  this  course,  and  to  obtain 
the  money  for  him.  National 


ACTIONS   BY   OR   AGAINST   HUSBAND    OR   WIFE 


527 


37.  Husband's  Coercion  of  Wife. 

A  married  woman  suing  for  the  cancellation  of  a  written 
agreement  as  procured  by  duress  or  coercion  has  the  burden 
of  establishing  that  it  was  so  procured.79  When  sued  for  a 
tort  she  is  exonerated  if  she  proves  that  she  committed  it  by 
coercion  of  her  husband.  Physical  compulsion  need  not  be 
shown,  but  moral  coercion,  the  immediate  pressure  of  au- 
thority, and  intimidation;  and  in  this  two  elements  are  in- 
volved,— 1.  His  presence,80  and  2,  his  direction.81  His  direc- 
tion is  not  alone  enough.82  If  his  presence  is  shown,  his 


Lumberman's  Bk.  v.  Miller,  131 
Mich.  564,  91  N.  W.  Rep.  1024, 
100  Am.  St.  Rep.  623. 

"Stanley  v.  Dunn,  143  Ind. 
495,  42  N.  E.  Rep.  908. 

The  burden  of  proving  that  an 
ante-nuptial  contract  was  procured 
by  undue  influence  of  the  husband 
is  upon  the  wife.  Oeseau  v.  Oeseau, 
157  Wis.  255,  147  N.  W.  Rep. 
62. 

If  the  wife  executes  a  note  for 
the  accommodation  of  her  hus- 
band she  cannot  later  have  the 
transaction  declared  void  against 
a  bona  fide  holder  for  value,  on  the 
ground  that  the  note  was  obtained 
by  false  misrepresentations  of  the 
husband.  Burr  v.  Tobey,  182  111. 
App.  228. 

A  court  of  equity  will  entertain 
a  suit  by  the  wife  to  cancel  a  sep- 
aration agreement  alleged  to  have 
been  signed  by  her  under  duress. 
Johnson  v.  Johnson,  150  N.  Y. 
App.  Div.  306,  134  N.  Y.  Supp. 
1081. 

80  It  must  appear  that  he  was 
present  at  the  time  or  near  enough 
to  keep  her  under  his  immediate 
influence  and  control.  Common- 


wealth v.  Munsey,  112  Mass.  289, 
arid  cases  cited.  On  the  question 
of  coercion  in  a  particular  act  in 
his  absence,  evidence  of  similar 
acts  done  by  her  in  his  presence 
and  for  the  same  purpose,  is  com- 
petent. Handy  v.  Foley,  121  Mass. 
259.  If  he  was  present  at  some, 
only,  of  a  series  of  acts,  the  pre- 
sumption that  the  influence  ex- 
tended to  all  may  be  negatived 
by  the  circumstances.  State  ». 
Cleaves,  59  N.  H.  298;  and  see 
Schouler's  Dom.  Rel.  104. 

81  Both   are   necessary.     Cassin 
v.  Delaney,  38  N.  Y.  178. 

Coercion  is  presumed  from  the 
presence  of  the  husband  but  such 
presumption  is  only  prima  fade 
and  may  be  rebutted.  Edwards 
v.  Wessinger,  65  S.  C.  161,  43  S.  E. 
Rep.  518,  95  Am.  St.  Rep.  789. 

The  statement  in  2  Kent  Com. 
149,  that  if  the  wife  commits  a 
tort  "in  his  company  or  by  his 
order,"  he  alone  is  liable,  is  too 
general,  and  must  be  limited  to 
the  case  of  her  acting  by  his  co- 
ercion. Handy  v.  Foley,  121  Mass. 
259,  23  Am.  Rep.  270. 

82  Id.    Contra,  Reeve,  Dom.  Rel. 


528 


ACTIONS   BY   OR   AGAINST   HUSBAND    OK   WIFE 


direction  or  command  is  presumed,  but  this  presumption  is 
not  conclusive.83  The  presumption  of  coercion  may  be  re- 
butted by  proof  that  she  instigated  the  tort,  or  by  other  cir- 
cumstances showing  her  independent  and  free  concurrence.84 


150;  and  see  2  Bish.  Mar.  W., 
§257. 

To  exempt  the  wife  from  liabil- 
ity for  her  tortious  acts,  the  pres- 
ence and  the  command  of  the  hus- 
band must  concur.  O'Brien  v. 
Walsh,  63  N.  J.  Law,  350,  43  Atl. 
Rep.  664. 

83  Cassin  v.  Delaney  (above) ; 
Schouler's  Dom.  Rel.  101.  It  is 
now  regarded  as  a  slight  presump- 
tion, and  may  be  rebutted  by 
slight  circumstances.  APPLETON, 
C.  J.,  State  v.  Cleaves,  59  Me.  298, 
s.  c.,  8  Am.  R.  422.  Formerly  it 
was  held  conclusive.  1  Greenl. 
Ev.,  §  28,  3  Id.  3. 

It  seems  that  it  was  formerly 
the  rule  that  a  wife  acted  under 
the  compulsion  of  her  husband 
when  in  his  presence;  but  in  some 
states,  as  for  example,  Kansas, 
Arkansas,  Nebraska  and  Georgia 
this  presumption  has  been  abol- 
ished either  by  court  decision  or 
by  statute.  State  v.  Seaborn,  166 
N.  C.  373,  81  S.  E.  Rep.  687. 

See  also  Commonwealth  v. 
Dwyer,  29  Pa.  Co.  Ct.  73. 

Until  1915  a  husband  in  Mis- 
souri was  liable  for  his  wife's  torts 
whether  or  not  committed  in 
his  presence.  Miller  v.  Busey 


et  al.,  186  S.  W.  Rep.  (Mo.)  983. 

"Whenever  a  woman  acts  in 
the  presence  of  her  husband  or 
when  her  husband  is  so  near  as 
that  his  presence  might  be  felt  by 
her,  the  presumption  is  that  she 
acts  by  his  coercion.  But  that 
presumption  is  not  a  conclusive 
one;  it  may  be  rebutted  by  proof 
to  the  contrary."  Commonwealth 
v.  Dwyer,  29  Pa.  Co.  Ct.  73. 

84  2  Whart,  Ev.,  §1267,  citing 
Marshall  v.  Oakes,  51  Me.  308. 

The  wife  is  jointly  liable  with 
her  husband  for  torts  committed 
by  her,  and  her  separate  property 
may  be  subjected  to  a  judgment 
rendered  against  her  for  her  torts. 
Magerstadt  v.  Lambert,  39  Tex. 
Civ.  App.  472,  87  S.  W.  Rep.  1068. 

The  presumption  of  coercion  is 
simply  a  presumption  which  may 
be  rebutted  by  evidence,  and  a 
wife  may  be  held  responsible, 
either  criminally  or  civilly,  for 
assaults  committed  of  her  own  free 
will  and  while  actually  under  no 
coercion  from  her  husband,  even 
although  he  be  present  and  join 
therein.  Ferguson  v.  Brooks,  67 
Me.  251;  Shane  v.  Lyons,  172 
Mass.  199,  51  N.  E.  Rep.  976,  70 
Am.  St.  Rep.  261. 


CHAPTER  VII 


ACTIONS  AFFECTING   PARTIES  IN  A  JOINT  OR  COMMON 
INTEREST  OR  LIABILITY 


1.  The  general  principle. 

2.  Joint  debtors. 

3.  Defendants  absent  or  defaulted. 

4.  Admissions,  etc.,  of  persons  not 

parties. 

5.  Admissions,     etc.,     of     parties 

having    common   interest    or 
liability. 


6.  — joint  interest  or  liability. 

7.  — joint  promisees. 

8.  Notice. 

9.  Declarations  of  conspirators  or 

confederates. 

10.  Preliminary  question  as  to  con- 
nection. 


1.  The  General  Principle. 

Where  there  are  two  or  more  plaintiffs,  or  two  or  more  de- 
fendants, alleged  to  have  a  joint  or  common  interest  or 
liability,  the  general  principle  by  which  the  admissibility 
of  evidence  affecting  a  part  of  them  is  to  be  tested  is  this: 
If  the  action  or  proceeding  is  one  in  which  a  separate  judg- 
ment can  be  given  against  one  irrespective  of  his  fellows, 
evidence  competent  as  against  him  is  admissible,  irrespective 
of  the  state  of  the  evidence  as  against  his  fellows; 85  and  the 
court  should  instruct  the  jury  if  necessary,  that  it  is  com- 
petent only  as  against  him,  and  will  not  sustain  a  verdict 
against  his  fellows,  unless  connection  is  shown.86  If  the  case 


85  Eaton  v.  Gates,  175  S.  W.  Rep. 
(Mo.)  950.  Thus,  if  the  action  is 
against  maker  and  indorser,  or  on 
a  several  bond,  or  a  joint  and  sev- 
eral bond,  or  against  two  for  a  tort, 
the  admissions  and  declarations  of 
either  defendant  are  competent 
against  him,  if  a  separate  judg- 
ment against  him  is  sought.  But 
if  the  action  is  unalterably  joint, 
or  an  action  in  rem,  or  a  proceeding 


in  the  nature  of  such  an  action — 
as  usually  in  case  of  probate  of  a 
will — other  evidence  to  connect 
the  other  parties  in  interest  with 
the  declarant  may  be  requisite. 

88  It  has  been  held,  however, 
that  where  the  admission  or  dec- 
laration is  admissible  against  one 
of  the  parties  only,  it  is  necessary 
for  the  other  parties  to  ask  for  in- 
structions, restricting  the  admis- 
529 


530 


ACTIONS   AFFECTING   PARTIES   IN   A   JOINT 


is  one  in  which  a  separate  judgment  cannot  be  had,87  evi- 
dence competent  against  any  one  is  admissible  in  the  fol- 
lowing cases:  1.  Where  the  others  have  been  defaulted,88  or 
their  liability  is  conceded  on  the  trial.89  2.  Where  there  is 
other  evidence  against  them  on  the  same  point,  sufficient 
to  go  to  the  jury,90  or  counsel  undertake  to  adduce  such  evi- 
dence in  due  course.91  3.  Where  evidence  of  the  acts,  ad- 
missions or  declarations  of  one  party  is  accompanied  with 
other  independent  evidence  that  his  relation  to  the  others 
was  such  as  to  render  it  just  to  impute  his  conduct  to 
them.92 


sion  or  declaration  to  the  party 
making  it.  Williams  v.  Taunton, 
125  Mass.  34;  Polly  v.  McCall,  37 
Ala.  20. 

87  Under  the  new  procedure, 
separate  judgment  may  be  had  in 
favor  of  one  of  two  plaintiffs,  if  he 
has  a  good  cause  of  action,  and 
against  the  other  who  has  not. 
Simar  v.  Canaday,  53  N.  Y.  298, 
and  see  Quinn  v.  Martin,  54  Id. 
660;  and  so  also  against  one  of 
two  defendants  sued,  even  on  an 
alleged  joint  obligation,  if  he  is 
proved  to  be  alone  liable,  and  in 
favor  of  the  other  who  is  not. 
Brumskill  v.  James,  11  N.  Y.  294. 
But  in  such  cases  the  evidence 
may  be  excluded  on  the  ground  of 
substantial  variance  and  surprise. 
"Judgment  may  be  given  for  or 
against  one  or  more  plaintiffs,  and 
for  or  against  one  or  more  defend- 
ants. It  may  determine  the  ulti- 
mate rights  of  the  parties  on  the 
same  side,  as  between  themselves; 
and  it  may  grant,  to  a  defendant, 
any  affirmative  relief,  to  which  he 
is  entitled." 

N.  Y.  Code  Civ.  Pro.,  §  1204. 


See  also  §  1205,  as  to  when  a  sev- 
eral judgment  may  be  taken. 

88  Paragraph  3  (below). 

89  If   one   defendant   offers   evi- 
dence   charging    the    other    with 
joint  liability,  the  other  must  ob- 
ject if  it  is  not  competent  against 
him.     Hermanos   v.   Duvigneaud, 
10  La.  Ann.  114. 

90  The  successive  acts  or  decla- 
rations   of    each    are    equivalent 
to    a    joint    declaration    by    all. 
Haughey  v.  Stridden,  2  Watts  & 
S.  411.     So,  for  another  instance, 
where  notice  to  both  of  two  own- 
ers must  be  proved,  evidence  of 
actual  sendee  on  one  having  been 
given,  the  admission  of  the  other 
that  he  had  notice  would  be  com- 
petent. 

91  Thompson    v.    Richards,     14 
Mich.  172,  187;  Forsyth  v.  Gan- 
son,  5  Wend.  558. 

92  See  paragraphs  5,  &c.  (below). 
These  rules  are  subject  to  some 
qualification  and  peculiar  applica- 
tions in  case  of  such  distinctive 
classes  of  persons  as  Heirs  and  de- 
visees,  Husband   and   wife,   Part- 
ners, &c.,  elsewhere  treated;  and 


OR   COMMON   INTEREST   OR   LIABILITY 


531 


2.  Joint  Debtors. 

Where  plaintiff  undertakes  to  prove  a  joint  liability,  if 
all  the  defendants  are  before  the  court,  he  must  prove  not 
only  the  contract,  but  the  connection  of  each  defendant  in 
the  tie  which  sanctions  a  joint  liability;  and  this  connec- 
tion must  be  proved  as  to  each  defendant,  by  evidence  com- 
petent as  against  him.  The  fact  that  they  are  co-defendants 
does  not  allow  him  to  prove  the  connection  of  one,  by  the 
declarations  of  another.  The  declaration  of  one  that  he 
was  a  partner,  or  otherwise  jointly  connected  with  the  others, 
is  not  to  be  excluded  because  it  asserts  the  liability  of  the 
others; 93  but  its  only  effect  is  as  against  him,  and  there  must 
be  other  evidence  with  a  similar  effect  against  each  of  the 
others.  When  the  complaint  alleges  that  the  contract  was 
made  by  two  defendants  jointly,  and  the  proof  shows  a  con- 
tract by  one  of  them  only,  there  is  a  variance.94 


in  all  cases,  of  course,  admissions 
and  declarations  may  be  competent 
against  another  than  the  declarant, 
by  the  rule  of  res  gestce,  or  if  made 
in  his  presence,  or  if  made  in  the 
course  of  duty,  or  against  interest 
by  a  person  since  deceased,  or 
may  be  received  to  discredit  the 
declarant  as  a  witness,  or  on  other 
such  special  grounds. 

?3  Lenhart  v.  Allen,  32  Perm.  St. 
312. 

"When  prima  fade  evidence  of 
the  partnership  has  been  given 
the  declarations  and  acts  of  the 
several  proven  partners  connected 
with  the  partnership  business 
while  it  is  being  carried  on  are 
competent  evidence  against  the 
others."  Franklin  v.  Hoadley, 
115  App.  Div.  538,  101  N.  Y. 
Supp.  374  (citing  text). 

94  Garrison  v.  Hawkins  Lumber 
Co.,  Ill  Ala.  308,  311,  20  So.  Rep. 


427;  Cobb  v.  Keith,  110  Ala.  614, 
18  So.  Rep.  325;  McAnnally  v. 
Hawkins  Lumber  Co.,  109  Ala. 
397,  19  So.  Rep.  417;  Whittemore 
v.  Merrill,  87  Me.  456,  461,  32 
Atl.  Rep.  1008,  1  Green.  Ev., 
§  66,  and  2  Green.  Ev.,  §  110. 

The  joinder  of  several  defend- 
ants in  a  suit  at  common  law, 
based  upon  contract,  express  or 
implied,  can  only  be  upheld  on 
the  theory  of  joint  liability.  Boo- 
gher  v.  Roach,  25  App.  (D.  C.)  324. 
In  an  action  against  two  defend- 
ants upon  a  joint  liability,  it  ap- 
peared that  one  of  the  defendants 
said  to  the  plaintiff  that  he  (the 
plaintiff)  "ought  to  be  paid  when 
they  had  the  mone.y  to  pay  with." 
Held,  that  this  statement,  alone, 
did  not  show  that  the  defendant 
making  it  bound  himself  to  pay, 
even  though  he  used  the  materials 
prepared  by  the  plaintiff.  In  this 


532 


ACTIONS    AFFECTING    PARTIES   IN    A   JOINT 


3.  Defendants,  Absent  or  Defaulted. 

Where  some  of  the  alleged  joint  debtors  admit  their  in- 
dividual and  joint  liability,  either  by  pleading  or  otherwise, 
or  are  proceeded  against  as  absentees  so  that  no  personal 
judgment  can  be  rendered  against  them  or  their  individual 
property,  plaintiff  is  only  obliged  to  produce  evidence  which 
will  be  sufficient,  as  against  those  who  appear  and  defend 
the  suit,  to  establish  their  joint  liability  with  their  co-de- 
fendants. In  such  cases,  the  acts  and  admissions  of  the 
parties  who  thus  appear  and  defend  are  legal  evidence 
against  themselves,  not  only  of  their  own  indebted- 
ness, but  also  of  their  joint  indebtedness  with  their  co- 
defendants.95 

In  an  action  for  a  tort,  evidence  of  admissions  or  declara- 
tions by  a  defendant  who  has  defaulted,  if  relevant  to  the 
measure  of  damages,  is  competent  as  against  him,  notwith- 
standing it  may  refer  to  the  others; 96  but  it  should  be  offered 


case,  however,  the  use  was  not 
under  circumstances  from  which 
a  promise  to  pay  could  have 
been  implied.  Boogher  v.  Roach 
(above). 

The  common-law  rule  was  that 
in  an  action  on  an  alleged  joint 
contract,  plaintiff  must  recover 
against  all  the  defendants  or  be  de- 
feated in  the  action.  This  rule  has 
been  somewhat  modified  by  stat- 
ute in  some  jurisdictions  (see  N. 
Y.  Code  Civ.  Pro.,  §  1204).  A 
plaintiff  may  now  recover  against 
one  of  several  defendants  on  a 
several  contract,  notwithstanding 
that  he  has  alleged  in  his  com- 
plaint that  it  .is  joint.  Niles  v. 
Battershall,  27  How.  381,  18  Abb. 
Pr.  161,  25  N.  Y.  Super.  Ct.  146; 
Brumskill  v.  James,  11  N.  Y.  294. 
But  even  in  those  jurisdictions,  if 
the  contract  sued  upon  is  joint 


only,  there  can,  if  the  nonjoinder 
be  properly  insisted  upon,  be  no 
recovery  against  one  only  of  the 
joint  contractors,  save  in  those 
cases  where  the  defense  is  a  per- 
sonal one.  Fowler  v.  Kennedy, 
2  Abb.  Pr.  347. 

95Halliday  v.  McDougall,  22 
Wend.  264,  270,  and  cases  cited. 
An  allegation  of  fact,  made  as  a 
part  of  one  of  several  defenses  in 
an  answer,  operates  only  as  an  ad- 
mission by  the  party  in  whose 
pleading  it  occurs,  and  may,  as 
evidence  merely  of  that  fact,  be 
rebutted  or  explained  in  the  same 
manner  as  other  admissions. 
Young  v.  Katz,  22  App.  Div.  (N. 
Y.)  542. 

MBostwick  v.  Lewis,  1  Day 
(Conn.),  33;  Daniels  v.  Potter,  M. 
&  M.  501. 


OR   COMMON   INTEREST   OR    LIABILITY 


533 


for  this  purpose,  and  not  as  evidence  against  those  who  de- 
fend.97 


4.  Admissions,  etc.,  of  Persons  Not  Parties  to  the  Action. 

The  fact  that  one  who  is  not  a  party  to  the  action  was  a 
party  to  the  contract  sued  on,  does  not  alone  render  his  ad- 
missions and  declarations  competent  against  those  who  sue 
or  are  sued.98  It  must  first  appear  that  he  is  the  real  party 
in  interest,99  or  other  special  grounds  must  be  shown  for 


97  Tenth  Nat.  Bk.  v.  Darragh,  3 
Supm.  Ct.  (T.  &  C.)  138. 

Testimony  of  alleged  admissions 
by  a  defendant  who  had  defaulted 
and  against  whom  judgment 
had  been  rendered  is  inadmissible 
against  another  defendant  who 
has  appeared,  being  mere  hearsay. 
The  fact  that  the  two  defendants 
were  brother  and  sister  and  lived 
together,  is  not  sufficient  to  charge 
either  with  the  admission  of  the 
other.  Graham  v.  Walsh,  14  Ga. 
App.  287,  80  S.  E.  Rep.  693. 

98Hamlin  v.  Fitch,  Kirby 
(Conn.),  174;  Abel  v.  Forgue,  1 
Root,  502.  Nor  is  the  admission  of 
such  person,  that  he  was  jointly  in- 
terested, competent  in  support  of 
a  plea  in  abatement.  Storrs  v. 
Wetmore,  Kirby  (Conn.),  203. 

The  admissions  of  one  who  is 
not  a  party  to  the  action  are  mere 
hearsay.  Garr  v.  Shaffer,  139 
Ind.  191,  38  N.  E.  Rep.  811. 

99  Bucknam  v.  Barnum,  15  Conn. 
68,73. 

The  admission  of  a  real  party  in 
interest  is  provable  as  against  a 
nominal  party.  Barber  v.  Bennett, 
60  Vt.  662,  15  Atl.  Rep.  348,  6 
Am.  St.  Rep.  141,  1  L.  R.  A.  224; 


Brown  v.  Brown,  62  Kan.  666,  64 
Pac.  Rep.  599. 

The  admissions  of  one  not  a 
party  to  the  record  are  competent 
only  when  he  is  represented  by  one 
who  is  a  party.  H.  C.  Judd  v. 
New  York,  etc.,  S.  S.  Co.,  128  Fed. 
Rep.  7,  62  Cir.  Ct.  App.  515. 

The  statements  of  the  real  party 
in  interest  relevant  to  the  issue, 
and  against  his  interest  at  the  time 
of  the  making  thereof,  are  admis- 
sible against  the  representative  of 
his  interest  who  is  the  nominal 
party,  though  the  person  who 
makes  the  statements  be  not  a 
party  to  the  action,  such  state- 
ments not  being  admitted  to  es- 
tablish the  fact  that  the  person 
making  them  is  the  real  party  in 
interest,  but,  that  fact  being  es- 
tablished, to  affect  the  interest  of 
such  real  party.  The  admissions 
of  the  cestui  que  trust,  the  trust  be- 
ing otherwise  established,  are  ad- 
missible, to  affect,  not  the  estate 
of  the  trustee,  but  the  trust  estate. 
Hart  v.  Miller,  29  Ind.  App.  222, 
64  N.  E.  Rep.  239. 

When  a  conspiracy  between  a 
husband  and  wife  to  defraud  his 
creditors  has  been  established, 


534 


ACTIONS   AFFECTING    PARTIES   IN   A   JOINT 


imputing  his  acts  to  the  party  against  whom  they  are  offered; 
and  the  rule  is  the  same  as  to  one  named  as  a  defendant  on 
the  record,  but  who  has  never  been  served  nor  appeared.1 

6.  Admissions  and  Declarations  of  Parties  Having  a  Com- 
mon Interest  or  Liability. 

A  common  or  several  interest,  or  a  common  or  merely 
several  liability,  does  not  render  the  hearsay  of  the  one  party 
admissible  against  the  other.  Tenancy  in  common,  that  is 
in  fractional  shares,  whether  of  real 2  or  personal 3  prop- 


evidence  of  declarations  made  by 
him  while  the  conspiracy  was 
pending,  and  tending  to  show  the 
intent  to  defraud,  are  admissible 
against  the  wife;  especially  so  when 
the  husband  remains  in  possession 
of  the  property  which  his  creditors 
are  seeking  to  reach  and  which  he 
had  conveyed  to  her.  Ernest  v. 
Merritt,  107  Ga.  61,  32  S.  E.  Rep. 
898. 

Where  an  administrator  brings 
a  suit  for  the  benefit  of  the  next  of 
kin,  the  administrator  is  only  the 
nominal  party  and  the  next  of  kin 
are  the  real  parties  in  interest  and 
their  admissions  will  be  competent 
as  against  him.  Atchison,  etc., 
Ry.  Co.  v.  Ryan,  62  Kan.  682,  64 
Pac.  Rep.  603. 

Where  the  personal  representa- 
tive of  a  decedent  sues  on  a  life 
insurance  policy  payable  to  the 
decedent's  estate,  the  declarations 
against  interest  of  the  decedent's 


widow,  who  is  not  a  party  in  inter- 
est, cannot  be  introduced  to  de- 
feat the  recovery  of  the  executor. 
Merchants'  Life  Assoc.  v.  Yoakum, 
39  Cir.  Ct.  App.  56,  98  Fed.  Rep. 
251. 

Testimony  of  the  declarations 
of  a  nominal  party  can  be  given 
only  in  impeachment  of  his  subse- 
quent contradictory  testimony  and 
not  as  substantive  evidence.  Med- 
lin  v.  County  Board  of  Education, 
167  N.  C.  239,  83  S.  E.  Rep.  483, 
Ann.  Gas.  1916,  E.  300. 

1  Peck  v.  Yorks,  47  Barb.  131. 
The  declarations  of  an  alleged 

partner  of  the  defendant,  who  has 
not  been  served  and  who  has  not 
appeared,  are  not  admissible  to 
prove  the  defendant's  partnership. 
Menzie  v.  Wolff,  120  N.  Y.  Supp. 
53. 

2  Dan  v.  Brown,  4  Cow.  483, 492. 
In  a  proceeding  to  establish  a  will, 
evidence  of  the  admissions  or  dec- 


3  McLeUan  v.  Cox,  36  Me.  95. 

The  declarations  of  a  sheriff  in 
making  a  levy,  in  connection  with 
the  performance  of  his  acts,  are 
admissible  in  behalf  of  the  owner 


of  such  property  suing  for  its 
conversion.  McKnight  v.  United 
States,  130  Fed.  Rep.  659,  65  Cir. 
Ct.  App.  37. 


OR   COMMON   INTEREST   OR   LIABILITY 


535 


erty,  is  not  enough  to  render  the  admissions  or  declarations 
of  one  co-tenant,  admissible  against  the  other;  but  of  course 
they  may  be  rendered  competent  by  showing  that  they  were 
made  in  the  presence  and  hearing  of  the  other,4  or  otherwise 
brought  to  his  knowledge. 

6.  — Joint  Interest  or  Liability. 

In  case  of  joint 5  interest  or  liability,  the  principle  upon 
which  the  admissions  and  declarations  of  one  are  admissible 


larations  of  a  party  interested  in 
the  estate  as  a  tenant  in  common 
with  others  is  inadmissible  against 
any  of  the  parties,  inasmuch  as 
the  will  cannot  be  admitted  as  to 
some  and  rejected  as  to  the  others. 
In  re  Kennedy,  167  N.  Y.  163,  60 
N.  E.  Rep.  442;  Naul  v.  Naul,  75 
App.  Div.  292,  78  N.  Y.  Supp.  101; 
Matter  of  Van  Dawalker,  63  App. 
Div.  551,  71  N.  Y.  Supp.  705;  In 
re  De  Laveaga,  165  Cal.  607,  133 
Pac.  Rep.  307.  Such  evidence  may, 
however,  be  admissible  in  im- 
peachment of  the  testimony  of  an 
interested  party  on  the  probate. 
In  re  De  Laveaga  (above). 

1  Crippen  v.  Morse,  49  N.  Y.  63.' 
Evidence  of  a  declaration  by  one, 
of  what  he  had  heard  the  other 
say,  not  competent.  Quinlan  v. 
Davis,  6  Whart.  169. 

In  an  action  on  a  guaranty,  the 
statements  of  the  principal  debtor 
are  not  admissible  as  against  the 
surety.  Strobel,  etc.,  Co.  v. 
Wiesen,  144  N.  Y.  App.  Div.  149, 
128  N.  Y.  Supp.  798. 

5  As  to  the  test  of  the  distinction 
between  joint  and  common  inter- 
ests in  contracts,  see  1  Addison  on 
Contr.  78-88,  1  Pars,  on  Contr.  11, 


1  Story  on  Contr.,  §  52,  &c.  "The 
nature  and  form  of  a  contract  gen- 
erally determines  whether  the  lia- 
bilities of  the  parties  are  joint,  or 
several,  or  joint  and  several. 
Where  a  contract  is  made  by  two 
or  more  persons  jointly,  and  there 
are  no  words  which  indicate  a 
several  liability,  the  contract  is  a 
joint  one."  Rosenzweig  v.  Mc- 
Caffrey, 28  Misc.  485,  59  N.  Y. 
Supp.  863.  By  statute,  in  some 
states  contracts  which,  at  common 
law,  would  be  construed  as  joint, 
are  required  to  be  construed  as 
joint  and  several.  Bagnell  Tim- 
ber Co.  v.  Missouri,  etc.,  Railway 
Co.,  242  Mo.  11,  145  S.  W.  Rep. 
469;  White  v.  Connecticut,  etc., 
Ins.  Co.,  34  App.  (D.  C.)  460. 
Similar  statutes  have  been  passed 
in  other  states,  for  instance,  pro- 
viding that  "where  all  the  parties 
who  unite  in  a  promise  receive 
some  benefit  from  the  considera- 
tion, whether  past  or  present,  their 
promise  is  presumed  to  be  joint 
and  several."  Rutherford  v.  Hal- 
bert,  42  Okl.  735,  142  Pac.  Rep. 
1099,  L.  R.  A.  1915,  B.  221.  A 
bill  of  parcels  delivered  on  a  sale, 
and  mentioning  several  as  the  sell- 


536 


ACTIONS   AFFECTING   PARTIES   IN   A   JOINT 


against  the  other,  is  that  of  agency.  Where  the  one  may  be 
deemed  to  have  been,  at  the  time  the  words  passed,  the 
agent  of  the  other  in  the  matter,  they  may  be  proved  against 
both.  Formerly  the  common  law  courts  applied  a  techni- 
cal rule  that  a  mere  joint  interest  or  obligation,  without  any- 
thing to  indicate  actual  intent,  raised  a  sufficient  legal  pre- 
sumption of  agency  for  this  purpose; 6  and  this  rule  is  still 
applied  in  England  7  and  in  some  of  our  States.8 


ers,  is  not  conclusive  evidence  that 
the  sale  was  joint,  but  parol  evi- 
dence is  competent  to  show  that 
one  of  those  named  was  really  the 
seller.  Harris  v.  Johnson,  3  Cranch, 
311. 

On  a  doubtful  question  whether 
an  account  with  plaintiffs  was 
joint  on  the  part  of  the  defendants, 
evidence  that  one  had  a  separate 
account  at  the  same  time,  is  com- 
petent. Quincey  v.  Young,  63 
N.  Y.  370,  rev'g  5  Daly,  327. 

A  conveyance  or  mortgage  made 
by  one  defendant  is  not  competent 
evidence  in  favor  of  the  other  to 
show  that  the  subject  of  the  con- 
veyance was  the  sole  property  of 
the  other.  Harris  v.  Wessels,  5 
Hun,  645. 

61  Pars,  on  Contr.  24;  Shoe- 
maker v.  Benedict,  11  N.  Y.  175, 
181,  and  cases  cited.  See  also 
Ringelstein  v.  City  of  Chicago, 
128  111.  App.  483. 

7  Steph.  Dig.  L.  Ev.,  art.  17. 

8  Black  v.  Lamb,  1  Beasl.  N.  J. 
108,  122.    See  also  Pierce  v.  Rob- 
erts, 57  Conn.  31,   17  Atl.   Rep. 
275;  Cady  v.  Shepherd,  11  Pick. 
400;  Walling  v.  Rosevelt,  16  N.  J. 
L.  41;  Lowle  v.  Boteler,  4  Harr.  & 
M.    346.      The    rule    stated    by 
PHILLIPS,    is    that,    as    a    general 


principle,  "in  a  civil  suit  by  or 
against  several  persons,  who  are 
proved  to  have  a  joint  interest  in 
the  decision,  a  declaration  made 
by  one  of  those  persons,  concern- 
ing a  material  fact  within  his 
knowledge,  is  evidence  against 
him,  and  against  all  who  are  par- 
ties with  him  to  the  suit."  He  adds 
in  effect,  that  a  joint  interest  in 
the  decision  is  not  essential  where 
there  is  a  joint  interest  in  the  trans- 
action (1  Phil.  Ev.  491).  And  the 
American  editor  adds,  that  where 
this  rule  is  applied,  it  is  necessary 
that  it  should  appear  that  the  de- 
fendants had  an  existing  joint  in- 
terest when  the  admission  was 
made.  Id.,  n.  1. 

GREENLEAF  states  the  rule  more 
loosely:  There  must  be  "some 
joint  interest,  &c.,  *  *  *  In  the 
absence  of  fraud,  if  the  parties 
have  a  joint  interest  in  the  matter 
in  suit,  whether  as  plaintiffs  or  de- 
fendants, an  admission  made  by 
one  is,  in  general,  evidence  against 
all.  They  stand  to  each  other,  in 
this  respect,  in  a  relation  similar 
to  that  of  existing  copartners" 
(citing  Whitcomb  v.  Whiting,  2 
Dougl.  652).  1  Greenl.  Ev.,  §  174. 

TAYLOR   more   guardedly   says: 
"When  several  persons  are  jointly 


OR   COMMON    INTEREST   OR   LIABILITY 


537 


Under  the  freer  rules  of  evidence  now  applied,  it  is  better 
to  be  prepared  with  some  evidence,  at  least,  besides  the  mere 
fact  of  a  joinder  in  interest,  to  sanction  the  inference  that 
one  might  speak  for  the  other.9  Joint  possession  alone, 


interested  in  the  subject-matter  of 
the  suit,  the  general  rule  is,  that 
the  admissions  of  any  one  of  these 
persons  are  receivable  against  him- 
self and  fellows,  whether  they  be 
all  jointly  suing  or  sued,  or  whether 
an  action  be  brought  in  favor  of  or 
against  one  or  more  of  them  sep- 
arately; provided  the  admission 
relate  to  the  subject-matter  in  dis- 
pute, and  be  made  by  the  declar- 
ant in  his  character  of  a  person 
jointly  interested  with  the  party 
against  whom  the  evidence  is  ten- 
dered." 1  Tayl.  Ev.  655,  §  674. 

STARKIE  tersely  indicates  the 
true  test.  Stating  that  an  admis- 
sion against  interest  is  deemed 
true  against  the  one  who  made  it, 
he  adds:  "The  same  rule  it  will  be 
seen  applies  to  admissions  by  those 
who  are  so  identified  in  situation 
and  interest  with  a  party  that  their 
declarations  may  be  considered  to 
be  made  by  himself.  1  Stark.  Ev. 
50. 

STEPHEN  says  nothing  of  joint 
owners,  and  classes  all  joint  con- 
tractors with  partners,  saying  that 
"Partners  and  joint  contractors 
are  each  other's  agents  for  the  pur- 
pose of  making  admissions  against 
each  other  in  relation  to  partner- 
ship transactions  or  joint  con- 
tracts;" but  not  for  the  purpose  of 
acknowledgment  by  promise  or 
payment,  to  remove  the  bar  of  the 
statute  of  limitations  when  once 


operative,  against  a  simple  con- 
tract. Steph.  Dig.  Ev.,  art.  17. 
Wigmore  states  the  rule  as  follows: 

"So  far  as  one  person  is  privy 
in  obligation  with  another,  i.  e. 
is  liable  to  be  affected  in  his  obli- 
gation under  the  substantive  law 
by  the  acts  of  the  other,  there  is 
equal  reason  for  receiving  against 
him  such  admissions  of  the  other 
as  furnish  evidence  of  the  act 
which  charges  them  equally  *  *  * 
There  being  an  identity  of  legal 
liability,  the  two  persons  are  one 
so  far  as  affects  the  propriety  of 
discrediting  one  by  the  statements 
of  the  other."  Wig.  Vol.  II, 
§  1077. 

Where  the  admission  of  one 
jointly  interested  is  competent,  the 
relative  smallness  of  the  amount 
of  his  interest  cannot  render  it 
incompetent.  Black  v.  Lamb,  1 
Beasl.  108,  122. 

9  In  Lewis  v.  Woodworth,  2  N. 
Y.  513,  it  was  determined  that  an 
admission  made  by  one  joint 
promissor,  although  acted  on  by 
a  third  person,  could  not  estop 
the  other  promissor;  and  it  was 
put  upon  the  ground  that  simple 
joint  contractors  are  not,  like  part- 
ners, agents  for  each  other.  In 
Van  Keuren  v.  Parmalee,  Id.  528, 
and  Shoemaker  v.  Benedict,  11  Id. 
176,  the  same  court  more  fully 
discussed  the  principle,  and  gave 
almost  unanimous  sanction  to  the 


538 


ACTIONS   AFFECTING    PARTIES   IN   A   JOINT 


may  be  sufficient  to  admit  evidence  of  the  separate  contem- 
poraneous declaration  of  either  possessor,  as  characteriz- 
ing the  joint  possession;  10  but  this  is  on  the  principle  that 
it  is  part  of  the  res  gestce.  Joint  possession  is  not  enough  to 
render  other  declarations  of  one  binding  on  the  other,  ex- 
cept hi  some  cases  where  the  latter  claims  under  the  pos- 
session in  the  former.  A  joint  business  or  adventure  fur- 
nishes usually  ground  for  inferring  the  agency  of  one  to  speak 
and  act  for  the  other,11  and  where  the  agency  is  sought  to  be 


doctrine  that  a  joint  debtor  has 
not,  merely  as  such,  any  authority 
to  make  admissions  which  will  af- 
fect his  fellows  (2  N.  Y.  528,  11  N. 
Y.  185);  and  the  justice  of  their 
conclusion  in  repudiating  the  Eng- 
lish doctrine  is  vindicated  by 
the  subsequent  English  legislation 
adopting,  to  a  great  extent,  the 
rule  in  respect  to  acknowledgments 
by  copartners  after  dissolution,  to 
which  this  doctrine  led  them.  19 
&  20  Vic.,  c.  97.  In  Wallis  v.  Ran- 
dall (81  N.  Y.  164,  170),  it  was 
said:  "A  joint  debtor  has  no  au- 
thority to  bind  any  other  person 
jointly  liable  with  him  by  his  state- 
ments or  admissions,  unless  he  is 
the  agent,  or,  in  some  other  way, 
the  representative  of  such  person. 
The  mere  fact  that  he  is  a  joint 
debtor  never  gives  the  authority." 

Tn  a  proceeding  to  remove  trus- 
tees the  admissions  of  one  are  in- 
competent as  against  the  other. 
Belding  v.  Archer,  131  N.  C.  287, 
42  S.  E.  Rep.  800. 

10Dawson  v.  Callaway,  18  Geo. 
573,  580.  This  is  in  harmony  with 
the  general  principle  that  the  dec- 
larations of  a  party  in  possession 
are  admissible,  as  part  of  the  res 


gestce,  as  tending  to  show  the  nature 
of  the  possession.  Wisdom  r. 
Reeves,  110  Ala.  418,  18  So.  Rep. 
13. 

11  Thus  where  one  of  the  several 
proprietors  of  a  theatre  made  the 
contract  in  suit  on  behalf  of  all 
the  proprietors,  the  declarations  of 
one  of  them  were  held  admissible 
against  all.  Kemble  v.  Fan-en,  3 
Carr.  &  P.  623. 

Where  several  persons  are  co- 
operating in  carrying  forward  a 
business  enterprise,  the  admissions 
of  one  in  the  absence  of  the  others 
are  competent  against  the  others. 
Summerville  v.  Penn  Drilling  Co., 
119  111.  App.  152. 

In  an  action  against  a  joint-tort 
feasor  an  allegation  by  the  plain- 
tiff in  his  complaint  against  an- 
other defendant  that  the  injury 
was  due  entirely  to  the  negligence 
of  the  defendant  in  the  other  ac- 
tion is  competent  as  an  admission 
against  the  plaintiff  but  is  not  con- 
clusive. Walsh  v.  N.  Y.  Central, 
etc.,  R.  Co.,  204  N.  Y.  58,  97  N. 
E.  Rep.  408, 37  L.  R.  A.  N.  S.  1137. 

The  statements  of  one  of  several 
associates  in  a  business  enterprise 
not  made  in  the  presence  of  the 


OR    COMMON   INTEREST   OR    LIABILITY 


539 


inferred  from  the  course  of  business,  evidence  of  former 
joint  transactions  in  the  same  employment  or  business, 
even  for  several  years  back,12  and  with  other  persons,13  is 
competent,  for  the  purpose  of  aiding  the  conclusion  that  the 
transactions  in  suit  were  also  joint;  and  an  authority  in  one 
to  speak  for  both  may  be  inferred  from  the  fact  of  his  ac- 
tivity, and  the  knowledge  and  silence  of  the  others; 14  but 
evidence  that  one  advanced  funds,  or  had  an  interest  as  a 
secured  creditor,  is  not  alone  enough.  The  joint  authority 
or  agency  must  relate  to  the  subject  of  the  joint  title  or  ad- 
venture.15 Where  an  admission  or  declaration  is  received 
by  virtue  of  such  a  relation,  it  must  be  shown  to  have  been 
made  during  the  continuance  of  the  relation;  and  if  it  con- 
sists of  a  writing,  the  date  is  not,  for  this  purpose,  sufficient 
evidence  of  the  time  when  it  was  made. 

The  admissions  and  declarations  of  one  when  thus  ad- 
missible against  others,  are  competent  equally  against  both, 


others  are  evidence  against  the 
latter  in  favor  of  a  third  person 
acting  and  relying  upon  what  was 
then  said  and  done.  Pearsall  v. 
Tenn.  Cent.  Ry.  Co.,  2  Tenn.  Ch. 
App.  682. 

As  to  admissions  and  declara- 
tions of  partners,  see  Chapter  IX, 
par.  32  of  this  volume. 

12Trego  v.  Lewis,  58  Penn.  St. 
463. 

"Bowers  v.  Still,  49  Penn.  St. 
65. 

14  Bank  of  U.  S.  v.  Lyman,  20 
Vt.  666. 

15  Thus  those  who  own  part  of  a 
ship    as    copartners    and    another 
part  as  tenants  in  common,  may 
bind  each  other  as  to  the  former 
interest  by  their  admissions,  but 
as  to  the  latter  interest  they  may 
not,    without    other    evidence    of 
agency  than  the  common  interest. 


The  acts  and  declarations  of  a 
partner  will  not  bind  his  associates 
in  matters  foreign  to  the  partner- 
ship business;  nor  are  such  decla- 
rations competent  evidence  of  the 
extent  of  the  maker's  authority  to 
bind  the  firm.  Taft  v.  Church,  162 
Mass.  527,  39  N.  E.  Rep.  283; 
Samstag  v.  Ottenheimer,  90  Conn. 
475,  97  Atl.  Rep.  865.  In  an  ac- 
tion against  a  partnership  to  re- 
cover damages  for  personal  in- 
juries evidence  was  offered  of  a 
declaration  by  one  of  the  partners 
that  he  was  willing  to  pay  plain- 
tiff but  that  the  other  members  of 
the  firm  disagreed  with  him — Held, 
that  such  evidence  was  inadmis- 
sible, notwithstanding  that  its  ef- 
fect was  limited  to  the  party  mak- 
ing it.  Folk  v.  Schaeffer,  180  Pa. 
St.  613,  37  Atl.  Rep.  104. 


540  ACTIONS   AFFECTING   PARTIES   IN    A   JOINT 

but  are  not  evidence  against  the  others  in  exoneration  of  the 
declarant — as,  for  instance,  to  show  that  he  was  merely 
their  surety; — and  in  all  cases  they  are  rendered  incompe- 
tent by  evidence  of  fraud. 

7.  — Joint  Promisees. 

In  so  far  as  joint  promisees  16  or  obligees  17  are  the  agents 
of  each  other  for  the  purpose  of  collection,  the  admissions 
and  declarations  of  either  are  competent  in  an  action  by  both 
against  both. 

8.  Notice. 

Notice  to  one  of  two  joint  promisors  18  or  joint  tenants  or 
purchasers,19  is  not  notice  to  the  other,  unless  agency  is 
shown. 

9.  Declarations  of  Conspirators  or  Confederates. 

The  familiar  rule  that  where  several  persons  are  engaged 
together  hi  the  furtherance  of  a  common  illegal  design,  the 
acts  and  declarations  of  one  confederate,  made  in  pursuance 
of  the  original  concerted  plan  and  with  reference  to  the 
common  object,  are  competent  evidence  against  the  others, 

16  Pringle  v.  Chambers,  1  Abb.  ing  (Mass.)  263,  where  it  was  held 
Pr.  58.  that  where  two  or  more  persons 

17  Cross  v.  Bedingfield,  12  Sim.  are  subject  to  a  joint  duty  or  ob- 
35;  Black  v.  Lamb,  1  Beasl.  (N.  J.)  ligation   upon   notice,   and   where 
108,    122.     Whether   these    cases  other  special  notice  is  not  made 
are  now  to  be  deemed  authority  necessary  by  statute,  or  by  con- 
with  us  for  the  doctrine  that  the  tract,   a  notice  addressed   to  all, 
joint  interest  alone  is  enough,  see  and  served  on  one  is  notice  to  all, 
note  to  paragraph  6,  above.     If  compare  also  cases  cited  in  29  Cyc. 
the  rule  goes  farther  than  stated  in  1124,  note  8,  and  Curtis  v.  Sexton, 
the  text,  it  should  be  only  within  252  Mo.  221,  259,  159  S.  W.  Rep. 
the  limits  stated  by  Phillips  and  512. 

Taylor.  19  Wade  on  Notice,  §  684.    Com- 

18  See   Lewis   v.   Woodworth,   2      pare  Spencer  v.  Campbell,  9  Watts 
N.  Y.  513.  &  S.  32. 

But  see  Knight  v.  Fifield,  7  Gush- 


OR   COMMON   INTEREST   OR   LIABILITY 


541 


though  made  in  their  absence,20  does  not  rest  on  the  joinder 
of  parties,21  but  rather  on  the  principle  of  legally  imputed 
agency;  and  the  evidence  is  confined  to  that  which  the  rule 
of  the  res  gestce  admits,22  and  excludes  narratives  of  past 
transactions.23 


20  The  declarations  of  one  not  a 
party  may  be  admitted  under  the 
rule.  American  Fur  Company  v. 
U.  S.,  2  Pet.  358,  364;  Preston  v. 
Bowers,  13  Ohio  St.  1,  13. 

A  conspiracy  being  established, 
everything  said,  written  or  done 
by  either  of  the  conspirators  in 
execution  or  furtherance  of  the 
common  purpose  is  deemed  to 
have  been  said,  done  or  written 
by  every  one  of  them  and  may  be 
proved  against  each.  Hamilton  v. 
Smith,  39  Mich.  222;  Lasher  v. 
Littell,  202  111.  551,  67  N.  E.  Rep. 
372;  American  Trust  Co.  v.  Chitty, 
36  Okla.  479,  129  Pac.  Rep.  51. 

If  two  or  more  persons  act  in 
concert  or  conspire  to  commit  a 
fraud  upon  another,  each  is  re- 
sponsible for  the  false  and  fraudu- 
lent representations  of  the  others 
within  the  scope  of  the  conspiracy. 
Miller  v.  John,  208  111.  173, 70  N.  E. 
Rep.  27. 

Statements  made  by  one  of 
several  conspirators  before  the  con- 


spiracy was  formed  are  admissible 
against  each.  Ramsey  v.  Flowers, 
72  Ark.  316,  80  S.  W.  Rep.  147. 

In  an  action  to  recover  money 
obtained  through  a  conspiracy, 
evidence  of  prior  similar  conspira- 
cies involving  the  same  parties 
are  admissible.  Stewart  v.  Wright, 
147  Fed.  Rep.  321,  77  Cir.  Ct.  App. 
499. 

21  Lincoln  v.  Claflin,  7  Wall.  132; 
Cuyler  v.  McCartney,  40  N.  Y.  221, 
rev'g  33  Barb.  165.    The  objection 
of  absence  in  such  a  case  goes  only 
to    the   weight   of    the    evidence. 
Bushnell  v.  City  Bank,  20  La.  Ann. 
464. 

22  Apthorp  v.  Comstock,  2  Paige, 
482,   488;    Farley   v.   Peebles,   50 
Neb.   723,   70   N.   W.   Rep.   231; 
State  v.  Tice,  30  Ore.  457,  48  Pac. 
Rep.  367;  Osmun  v.  Winters,  30 
Ore.  177,  46  Pac.  Rep.  780;  Garn- 
sey  v.  Rhodes,  138  N.  Y.  461,  34 
N.  E.  Rep.  199. 

The  fraud  of  an  insurer's  agent 
in  the  procurement  of  a  policy  is 


23  Clinton  v.  Estes,  20  Ark.  216; 
Patton  v.  The  State,  6  Ohio  St. 
467. 

As  long  as  the  conspiracy  is  still 
pending  every  act  and  declaration 
of  each  member  of  the  conspiracy, 
in  pursuance  of  the  original  con- 
certed plan,  and  with  reference  to 
the  common  object,  is,  in  contem- 
plation of  law,  the  act  and  declara- 


tion of  them  all,  and  is  therefore 
original  evidence  against  each  of 
them.  Smith  v.  National  Benefit 
Soc.,  123  N.  Y.  85,  25  N.  E.  Rep. 
197,  9  L.  R.  A.  616;  Connecticut 
Mutual  Life  Ins.  Co.  v.  Hillmon, 
188  U.  S.  208,  23  Sup.  Ct.  294,  47 
L.  ed.  446. 

The   declarations   of   a   co-con- 
spirator, made  after  the  comple- 


542 


ACTIONS   AFFECTING    PARTIES   IN   A   JOINT 


10.  Preliminary  Question  as  to  Connection. 

The  connection  between  the  parties  which  renders  the- 
declaration  of  one  competent  against  the  other,  can  never 
be  proved  by  the  declaration  itself,  but  must  be  separately 
proved,  as  the  foundation  for  admitting  the  declaration. 


binding  upon  the  principal.  Con- 
necticut Mutual  Life  Ins.  Co.  v. 
Hillmon,  188  U.  S.  208,  23  Supm. 
Ct.  294,  47  L.  ed.  446. 

What  is  merely  narrative  of  a 
past  occurrence,  or  what  is  merely 
expressive  of  a  future  purpose,  is 
not  admissible;  but  an  act  per- 
formed, a  declaration  made,  a 
writing  made  or  delivered,  as  a 
part  of  the  matter  in  dispute,  that 
is,  in  itself  tending  to  advance  the 
common  purpose  or  object  of  the 
alleged  conspiracy,  is  neither  hear- 
say nor  merely  the  admission  of 
one  of  the  parties.  It  is  an  overt 
act  in  pursuance  of  the  object. 
Farley  v.  Peebles,  50  Neb.  723, 
70  N.  W.  Rep.  231. 

Where  prima  fade  evidence  of  a 
conspiracy  is  given,  the  declara- 
tions of  the  conspirators  made  in 
carrying  it  out  are  competent. 
Voisin  v.  Commercial  Mutual  Life 
Ins.  Co.,  60  N.  Y.  App.  Div.  139, 
70  N.  Y.  Supp.  147. 

Where  husband  and  wife  have 
conspired  to  defraud  creditors  the 


declaration  of  either  after  the  con- 
spiracy has  terminated  are  not 
admissible  against  the  other.  Mul- 
ler  ».  Flavin,  13  S.  Dak.  595,  83 
N.  W.  Rep.  687. 

In  a  conspiracy  to  procure  a 
will  by  undue  influence,  the  dec- 
larations of  the  conspirators  made 
after  the  will  is  executed  but  be- 
fore it  is  probated  are  admissible, 
as  the  common  purpose  must  have 
contemplated  and  embraced  the 
probate  of  the  will,  and  the  con- 
spiracy did  not  expire  until  then. 
Coghill  v.  Kennedy,  119  Ala.  641, 
24  So.  Rep.  459. 

In  an  action  upon  a  boycotting 
conspiracy,  the  statements  of  dif- 
ferent defendants  indicative  of 
their  purpose,  and  of  members 
of  the  association,  not  defendants, 
as  to  the  force  and  effect  of  the 
vote,  made  contemporaneously 
with  and  in  explanation  of  their 
action  under  it,  are  admissible. 
Boutwell  v.  Marr,  71  Vt.  1,  42  Atl. 
Rep.  607,  43  L.  R.  A.  803,  76  Am. 
St.  Rep.  746. 


tion  of  the  criminal  enterprise, 
relating  to  a  past  transaction,  and 
accompanying  no  act  done  in 
furtherance  of  the  enterprise,  are 
incompetent  against  the  other. 
Lederer  v.  Adler,  46  N.  Y.  Misc. 
564,  92  N.  Y.  Supp.  827. 

The  declarations  of  one  of  several 


co-conspirators  made  after  the 
conspiracy  has  been  completed 
are  admissible  against  him  alone. 
Standard  Oil  Co.  v.  Doyle,  118 
Ky.  662,  82  S.  W.  Rep.  271,  26 
Ky.  Law  Rep.  544,  111  Am.  St. 
Rep.  331. 


OK   COMMON   INTEREST   OR   LIABILITY 


543 


Strictly  it  ought  to  be  proved  first,  but  it  is  in  the  discretion 
of  the  court  to  allow  the  declaration  to  be  proved  first  on 
the  promise  of  counsel  to  connect  afterward,24  and  it  is  not 
error  to  allow  this  even  hi  cases  of  conspiracy.25  Where  a 


24  Bowers  v.  Still,  49  Perm.  St. 
65,  s.  P.,  Cobb  v.  Lent,  4  Greenl. 
(Me.)  503. 

25  Place  v.  Minster,  65  N.  Y.  89; 
State  v.  Ross,  29  Mo.  32,  50.    It 
is  true  that  it  is  of  no  consequence 
(on  the  question  of  error)  in  what 
order    the    testimony    was    intro- 
duced if  it  in  the  end  proves  rel- 
evant   (Jenne    v.    Joslyn,    41    Vt. 
478);  but  if  it  does  not  prove  rele- 
vant, the  judge's  instructions  will 
often   fail   to   remove   the   unjust 
impression  produced.     In  cases  of 
confederacy,  particularly,  the  foun- 
dation for  the  admission  of  the 
evidence    should    be    scrutinized 
with  caution,  lest  the  jury  be  led 
to    infer   a    conspiracy    from   the 
declarations  of  strangers.     Burke 
v.  Miller,  7  Cush.  547,  550.    A  con- 
spiracy, like  other  facts,  may  be 
proved  by  circumstantial  evidence, 
and  one  means  of  proof  is  by  show- 
ing overt  acts  of  the  individuals 
charged  with  conspiring  from  the 
fact    that     different    persons     at 
different  times  by  other  acts  pur- 
sued  the   same   object,   the   jury 
may,    in    connection    with    other 
facts,  infer  the  existence  of  a  con- 
spiracy to  effect  that  object.    Far- 
ley v.  Peebles,  50  Neb.  723,  70 
N.  W.  Rep.  231. 

To  make  the  declarations  of 
an  alleged  conspirator  admissible 
in  evidence  against  his  co-conspir- 
ators, there  must  be  preliminary 


proof  of  the  joint  purpose  and  ac- 
tion, not  necessarily  conclusive, 
but  sufficient  to  submit  to  the  jury 
on  the  fact;  and  the  declarations 
so  admissible  must  have  been  made 
during  the  pendency  of  the  con- 
spiracy. To  allow  the  declarations 
to  be  proved  without  prior  evidence 
of  the  conspiracy  upon  the  coun- 
sel's promise  to  connect  it,  lies  in 
the  discretion  of  the  judge.  Mar- 
shall v.  Faddis,  199  Pa.  St.  397,  49 
Atl.  Rep.  225. 

Wherever  the  writings  or  words 
of  any  of  the  parties  charged  with 
or  implicated  in  a  conspiracy  can 
be  considered  in  the  nature  of  an 
a^t  done  in  furtherance  of  the 
common  design,  it  is  admissible 
in  evidence,  not  only  as  against 
the  party  himself,  but  as  proof 
of  an  act  from  which  the  jury  may 
infer  the  conspiracy  itself.  Cleland 
v.  Anderson,  66  Neb.  252,  92  N.  W. 
Rep.  306,  96  N.  W.  Rep.  212,  5 
L.  R.  A.  N.  S.  136. 

Until  several  individuals  are  by 
evidence  shown  to  have  been  in 
the  relation  of  conspirators  they 
cannot  legitimately  be  prejudiced 
by  any  evidence  of  the  declara- 
tions of  others  charged  with  the 
alleged  conspiracy.  Douglas  v. 
McDermott,  21  N.  Y.  App.  Div. 
8,  47  N.  Y.  Supp.  336. 

Where  no  conspiracy  has  been 
testified  to  it  is  error  to  admit  any 
declarations  alleged  to  have  been 


544 


ACTIONS   AFFECTING    PARTIES   IN   A   JOINT 


joint  judgment  is  sought,  there  is  the  more  reason  for  re- 
quiring the  connection  to  be  first  proved;  and  in  this  class 
of  cases,  as  well  as  where  the  declaration  is  that  of  an  alleged 
agent,  it  is  the  better  opinion  that  the  question  of  connec- 
tion is  a  preliminary  question  for  the  judge,26  who  should 


made  in  connection  with  the  con- 
spiracy. Hertrich  v.  Hertrich,  114 
Iowa,  643,  87  N.  W.  Rep.  689,  89 
Am.  St.  Rep.  389. 

The  declaration  of  an  alleged 
conspirator  cannot  be  admitted 
against  an  alleged  co-conspirator 
for  the  purpose  of  proving  the  con- 
spiracy itself.  Lent  v.  Shear,  160 
N.  Y.  462,  55  N.  E.  Rep.  2,  rev'g 
20  N.  Y.  App.  Div.  624,  46  N.  Y. 
Supp.  1095. 

A  conspiracy  is  the  combination 
of  two  or  more  persons,^  by  con- 
certed action,  to  accomplish  a 
criminal  or  unlawful  purpose,  or 
some  purpose  not  in  itself  criminal 
or  unlawful,  by  criminal  or  unlaw- 
ful means.  In  order  to  establish 
a  conspiracy,  evidence  must  be 
produced  from  which  a  jury  may 
reasonably  infer  the  joint  assent 
of  the  minds  of  two  or  more  per- 
sons to  the  prosecution  of  the  un- 
lawful enterprise.  Until  such  evi- 
dence is  produced,  the  acts  and 
admissions  of  one  of  the  alleged 
conspirators  are  not  admissible  as 
evidence  against  any  of  the  others, 
unless  the  court,  in  its  discretion, 
permits  their  introduction  out  of 
their  order.  But  when  such  evi- 
dence has  been  produced,  any  act 
or  declaration  of  one  of  the  parties 
in  reference  to  the  common  object 
which  forms  a  part  of  the  res 
gestce  may  be  given  in  evidence 


against  any  one  of  the  others  who 
has  consented  to  the  enterprise. 
Pettibone  v.  United  States,  148 
U.  S.  197,  13  S.  Ct.  542,  37  L.  ed. 
419;  Spies  «.  People,  122  111.  1, 
102,  238,  12  N.  E.  Rep.  865,  17 
N.  E.  Rep.  898, 3  Am.  St.  Rep.  320; 
Drake  v.  Stewart,  22  Cir.  Ct.  App. 
104,  76  Fed.  Rep.  140;  Archer  v. 
State,  106  Ind.  426,  7  N.  E.  Rep. 
225. 

26  The  sufficiency  of  the  evidence 
of  the  necessary  foundation  is 
held  a  question  for  the  judge,  in 
New  York,  Jones  v.  Hurlbut,  39 
Barb.  403;  Massachusetts,  Burke  v. 
Miller,  7  Cush.  547,  550;  Missouri, 
State  v.  Ross,  29  Mo.  32,  51; 
Iowa,  State  v.  Nash,  7  Iowa,  347, 
384;  and  see  Dickinson  v.  Clarke, 
5  W.  Va.  280.  But  the  ruling  that 
it  is  sufficient  usually  means  merely 
that  it  is  sufficient  to  go  to  the 
jury,  who  may  still  pass  on  the 
sufficiency  of  the  connection,  as 
well  as  on  the  sufficiency  of  the 
admission  or  declaration,  if  the 
connection  be  shown.  Common- 
wealth v.  Brown,  14  Gray,  419, 
432.  But  see  Jones  v.  Hurlburt, 
39  Barb.  403.  Hence,  if  the  neces- 
sary connection  is  shown  by  the 
testimony  of  a  competent  witness, 
the  court  will  not  question  his 
credibility,  but  leave  it  to  the  jury. 
Commonwealth  v.  Crowninshield, 
10  Pick.  497.  It  seems  to  be 


OR    COMMON    INTEREST   OR    LIABILITY  545 

exclude  the  evidence,  or,  when  it  has  been  admitted  by  an- 
ticipation, strike  it  out  or  direct  the  jury  to  disregard  it,  if 
it  is  not  as  matter  of  law  sufficient  to  lay  the  foundation. 
In  those  cases  where  a  separate  judgment  is  sought,  as  well 
as  in  all  cases  in  those  courts  where  the  question  of  connec- 
tion is  deemed  one  for  the  jury  instead  of  for  the  judge, 
the  evidence,  if  received  against  the  declarant,  should  be 
accompanied  by  instructions  clearly  pointing  out  the  dis- 
tinction between  evidence  admitted  for  the  purpose  of  es- 
tablishing the  confederacy  or  other  connection,  and  that 
which  is  to  be  considered  only  after  the  connection  has  been 
proved  and  found  by  them.  The  jury  should  also  be  in- 
structed as  to  the  persons  who  must  be  found  united  in  the 
confederacy.27 

treated  as  a  question  for  the  jury,  tor  not  made  in  the  carrying  out 

in  the  first  instance,  in  Pennsyl-  of  the  conspiracy  is  inadmissible. 

vania,  Helser  v.  McGrath,  58  Penn.  Seitz  v.  Starks,  136  Mich.  90,  98 

St.    458;    Kentucky,     Oldham    v.  N.  W.  Rep.  852. 
Bentley,  6  B.  Mon.  428,  431.  a  Wiggins  v.  Leonard,  9   Iowa, 

The  declarations  of  one  defend-  194.  But  if  there  is  any  evidence 
ant  do  not  bind  the  other  defend-  to  connect,  it  is  not  error  to  omit 
ants  in  the  absence  of  proof  of  as-  such  instructions  when  they  are 
sent  or  proof  that  all  were  engaged  not  asked  for.  Boswell  v.  Black- 
in  a  joint  enterprise.  Whaples  v.  man,  12  Geo.  591.  If  connection 
Fahys,  109  N.  Y.  App.  Div.  594,  is  disproved,  it  is  error  to  leave  the 
96  X.  Y.  Supp.  323.  question  to  the  jury.  Page  v. 

A  declaration  of  a  co-conspira-  Scran  ton,  39  Me.  400. 


CHAPTER  VIII 


ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS 


I.  GENERAL  PRINCIPLES. 

1.  Different  proof  of  title,  in 

different  cases. 

2.  Legal  title. 

3.  Contracts  in  official  capacity. 

4.  Acts   by   part  of  board  or 

body. 

5.  Demand  and  notice. 

6.  Former  judgments. 

TI.  ACTIONS  BY  OFFICERS. 

7.  Pleading  by  officer  suing  as 

such. 

8.  Proof  of  title. 

9.  Process     as     supporting     a 

cause  of  action. 

10.  Return  adduced  in  his  own 
favor. 


11.  Action  for  emoluments. 

III.  ACTIONS  AGAINST   OFFICERS. 

12.  Plaintiff's  pleading. 

13.  Plaintiff's    proof    of    official 

character  of  defendant  or 
his  deputy. 

14.  Cause  of  action. 

15.  Return,  as  against  the  offi- 

cer. 

16.  Public  action  for  refusal  to 

serve. 

17.  Pleading  by  officer  defend- 

ant. 

18.  Defendant's  proof  of  official 

character  in  justification. 

19.  Process  as  a  protection  to  de- 

fendant. 


I.  GENERAL  PRINCIPLES 

1.  Different  Proof  of  Title,  in  Different  Cases. 

There  are  three  principal  grades  of  proof  of  the  official 
character  of  an  alleged  officer,  adequate  in  different  classes 
of  cases:  1.  That  he  was  officer  de  jure,  that  is,  with  legal 
title.  2.  That  he  was  officer  de  facto,  that  is,  that  he  acted 
as  such,  with  color  of  title,28  though  it  may  be  without  legal 


28  To  constitute  color  of  office 
there  must  be  some  color  of  elec- 
tion or  appointment,  or  at  least  an 
exercise  of  the  office,  and  a  public 
acquiescence  for  a  sufficient  length 
of  time  reasonably  to  authorize 
the  presumption  of  at  least  col- 
orable election  or  appointment. 

546 


State  v.  Carroll,  38  Conn.  449,  s. 
c.,  9  Am.  R.  409,  427;  Wilcox  v. 
Smith,  5  Wend.  231. 

Mere  irregularities  in  the  qual- 
ification or  in  the  appointment  of 
an  officer  will  not  prevent  his  be- 
ing a  de  facto  officer.  If  he  be  il- 
legally elected  or  appointed  by  one 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 


547 


title.  3.  That  he  assumed  to  act  as  such  in  the  transaction 
in  question,  though  it  may  be  without  color  of  title.  It  will 
be  seen,  hi  this  chapter,  that:  1.  On  an  issue  directly  between 
the  officer  and  the  public,  whether  in  an  action  by  the  State, 
or  by  or  against  other  public  officers,  strict  proof  of  title  is 
necessary.29  2.  On  an  issue  between  third  persons,29*  or 
between  them  and  the  officer,  or  between  them  and  the 
public,  evidence  that  he  was  an  officer  de  facto  is  always  suf- 
ficient and  conclusive  against  every  party,  and  equally  in 
favor  of  any  party  but  the  officer  himself,30  while,  in  his 
favor,  it  is  commonly  regarded  as  competent,  for  the  pur- 
pose of  raising  a  presumption  that  he  was  officer  de  jure.  3. 
On  an  issue  between  a  third  person  and  the  alleged  officer, 
evidence  that  he  acted  as  such  hi  the  transaction  is  compe- 
tent and  usually  conclusive  evidence  of  his  official  character, 


who  himself  has  only  a  claim  to 
an  office,  it  is  still  possible  for  his 
acts  to  be  recognized  as  valid, 
because  he  was  exercising  de  facto 
the  functions  of  an  office.  But  to 
constitute  one  an  officer  de  facto 
there  must  be  not  only  facts,  cir- 
cumstances, or  conditions  which 
would  reasonably  lead  persons 
who  have  relations  or  business 
with  the  office  to  recognize 
him  and  treat  him  as  the  law- 
ful incumbent,  and  to  submit  to 
and  invoke  his  official  action  with- 
out inquiry  as  to  his  title — he 
must  not  only  have  the  reputation 
of  being  an  officer— but  above 
all  else  there  must  be  an  office 
corresponding  with  that  which 
he  purports  to  hold.  If  there 
is  no  office  there  can  be  no  officer 
de  facto. 

An  officer  de  facto  is  one  who 
has  the  reputation  of  being  the 
officer  he  assumes  to  be,  and 


yet  is  not  a  good  officer  in  point 
of  law. 

There  cannot  be  a  de  facto  judge 
pro  hoc  vice  because  he  is  appointed 
for  only  one  case.  Hall  v.  Man- 
chester, 39  N.  H.  295;  Beding- 
field  v.  First  Natl.  Bk.,  4  Ga.  App. 
197,  61  S.  E.  Rep.  30. 

29  Paragraphs  8  and   13  below. 
Contra,  1  Greenl.  Ev.  115,  §  92. 

29i  Cooper  v.  Ricketson,  14  Ga. 
App.  63,  80  S.  E.  Rep.  217. 

30  The  English  rule,  embodied  in 
Greenleaf's  statement,  allows  this 
evidence  to  be  conclusive  in  favor 
of  the  officer.     The  presumption 
is    sufficiently   strong   under   Act 
No.  125,  Ex.  Ses.  of  1877,  to  entitle 
a  person  who  has  qualified  as  a 
statutory  officer  in  an  office,  the 
appointment  to  which  is  vested  in 
the  Governor,  prima  facie  to  pos- 
session of  the  books  of  the  office. 
State  v.  Rost,  47  La.  Ann.  53,  16 
So.  Rep.  776. 


548 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 


as  against  him;  and  evidence  that  he  was  recognized  as  such 
by  the  other  party,  is  competent  and  sufficient,  though  not 
conclusive  evidence  thereof,  against  such  party. 

2.  Legal  Title. 

Where  legal  title  is  hi  issue,  and  strict  proof  is  required, 
the  certificate  of  election  or  commission  coming  from  the 
proper  source,  is  presumptive  evidence  of  his  right  to  the 
office; 31  but  it  is  only  matter  of  evidence,  and  its  existence 
is  not  essential,  unless  made  so  by  statute.32  Thus,  if  the 
statute  simply  authorizes  a  judge  to  appoint  without  more, 
proof  of  writing,  is  not  necessary,  but  proof  of  an  oral  ap- 
pointment by  some  open,  unequivocal  act,  is  sufficient, 
and  the  subsequent  failure  to  sign  an  order  entered  for  ap- 
pointment does  not  affect  the  title  to  the  office.33  If  a  writ- 


31 2  Dill.  Mun.  C.  807,  §  716,  s.  P., 
State  ex  rel.  Leonard  v.  Sweet,  27 
La.  Ann.  541;  Wood  v.  Peake,  8 
Johns.  69. 

Where  a  person  produces  a  cer- 
tificate of  election  from  the  proper 
election  officers,  of  his  election  to 
an  office,  with  proof  that  he  has 
taken  the  constitutional  oath  of 
office  and  filed  the  same,  and  given 
the  necessary  undertaking,  where 
one  is  required  by  law,  he  is  en- 
titled to  the  delivery  to  him  of  the 
books  and  papers  to  such  office. 
Matter  of  Foley,  8  N.  Y.  Misc. 
196,28N.Y.Supp.61L 

In  controversies  between  claim- 
ants to  the  same  office,  the  one 
who  holds  a  commission  or  a  cer- 
tificate of  election  is  generally 
deemed  the  one  entitled  to  the 
office  since  the  commission  or  cer- 
tificate is  the  best  evidence  of  title 
to  the  office  until  the  same  is  an- 
nulled in  a  proper  judicial  proceed- 


ing.   Stamps  v.  Little,  167  S.  W. 
(Tex.  Civ.  App.)  776. 

32  State  v.  Markham,  160  Wis. 
431,  152  N.  W.  Rep.  161;  State  ». 
Meder,  22  Nev.  264,  38  Pac.  Rep. 
668;  People  v.  Murray,  70  N.  Y. 
521;     Marbury     v.     Madison,     1 
Cranch,  137;  People  ex  rel.  Bab- 
cock  v.  Murray,  5  Hun,  42.    Where 
in  cities  of  a  certain  class  it  was 
provided  by  statute  that  the  office 
of  police  judge  must  be  created  by 
ordinance,  the  mere  testimony  of 
an  incumbent  of  such  an  office  to 
the  effect  that  he  was   a   police 
judge  is  insufficient  to  prove  his  ap- 
pointment.    The  evidence  should 
show  that  the  office  of  police  judge 
had  been  provided  for  in  the  man- 
ner prescribed  by  the  statute.    An 
objection,   however,   is   necessary, 
in  order  that  the  insufficiency  may 
be  availed  of.    De  Soto  v.  Brown, 
44  Mo.  App.  148. 

33  Hoke  v.  Field,  10  Bush,  144, 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS  549 

ing  exists,  however,  it  should  be  produced  as  the  best  evi- 
dence, or  should  be  accounted  for,  to  lay  a  foundation  for 
secondary  evidence,  in  cases  where  strict  proof  of  title  is 
required.  Where  appointment  must  be  proved,  extrinsic 
evidence  is  inadmissible  to  show  that  Robert,  the  officer  de 
facto,  was  the  person  intended  to  be  appointed  by  the  name 
of  William,  used  in  the  commission.34  Production  of  a  cer- 
tified copy  of  the  appointment  on  file  does  not  dispense  with 
all  proof  of  authenticity  of  the  original.35  If  the  statute  re- 
quires a  written  oath  to  be  filed,  the  taking  of  the  oath  can- 
not be  proved  by  a  memorandum  at  the  foot  of  the  com- 
mission, "sworn  before  me,"  with  date  and  signature  of  the 
magistrate.36  But  a  copy  of  the  oath  duly  certified  by  the 
officer  with  whom  it  was  duly  filed,  is  competent.37  Where  it 
is  necessary  to  show  a  vacancy  to  justify  an  appointment, 
it  is  enough  to  show  that  the  office  was,  as  matter  of  law, 
vacated  by  a  prior  incumbent,  without  proving  that  there 
was  no  other  new  appointment.38 

s.  c.,  19  Am.  Rep.  58.   Where  a  city  istered  the  oath  failed  to  attach  his 

charter    authorized    the    Common  official  seal  to  the  jurat,  the  officer 

Council  to  appoint  a  certain  officer,  may  show  by  oral  evidence  that 

without,   however,   indicating  the  the  oath  was  in  fact  taken.    State 

mode    of    appointment,    and    the  v.  Van  Patten,  26  Nev.  273,   66 

appointment  was  made  by  ballot,  Pac.  Rep.  822. 

the  officer  thus  chosen  was  deemed  36  Halbeck   v.    Mayor,    etc.,    of 

duly  appointed.    The  council,  pos-  N.  Y.,  10  Abb.  Pr.  439. 

sessing  no  power  of  removal,  could  37  Devoy  v.  Mayor,  etc.,  of  N.  Y., 

not,    by,  any    subsequent    action  35  Barb.  264,  s.  c.,  22  How.  Pr. 

on   its  part,    repeal  or  set  aside  226. 

the  appointment  and  choose  some  In  a  summary  proceeding  to  au- 

one   else.     State   v.   Barbour,   53  thorize  the  delivery  of  the  books 

Conn.   76,  22  Atl.   Rep.   686,   55  and  papers  of  an  office  to  the  per- 

Am.  St.  Rep.  65.    As  to  mode  of  son  who  appears  to  be  entitled  to 

proving  appointment  by   vote  of  the  office,  an  attempt  to  file  the 

municipal    body,    see    Canniff    v.  constitutional  oath  of  office  within 

Mayor,  etc.,  of  N.  Y.,  4  E.  D.  the  time  prescribed  by  law  is  a 

Smith,  430.  sufficient  compliance  with  the  stat- 

34  Bench  v.  Otis,  25  Mich.  29.  ute.     Matter  of  Foley,  8  N.  Y. 

"Curtis  v.   Fay,  37  Barb.   67.  Misc.  196,  28  N.  Y.  Supp.  611. 

Where  the  notary  who  admin-  3S  Canniff  v.  Mayor,  etc.,  of  N.  Y., 


550  ACTIONS    BY   AND    AGAINST   PUBLIC    OFFICERS 

3.  Contracts  in  Official  Capacity. 

A  contract  made  by  a  public  officer,  connected  with  a 
subject  fairly  within  the  scope  of  his  authority,  is  presumed 
to  have  been  made  in  his  official  capacity.39  If  the  other 
party  was  aware  of  his  official  character,  this  presumption 
arises,  although  he  used  language  importing  a  personal  prom- 
ise,40 and  it  is  not  necessary  to  show  that  he  said  he  acted 
as  officer.41  The  question  is  one  of  intent  and  credit,  with 
a  strong  presumption  against  personal  liability.  Where  he 
contracts  under  private  seal,  designating  himself  as  one  of 
the  parties,  yet  if  the  deed  appears  on  its  face  to  be  made  on 
behalf  of  the  State,  the  same  presumption  applies.42  In  an 
action  against  a  public  officer  on  a  contract  apparently  made 
by  him  as  such,  it  is  not  necessary  to  allege  that  he  had  au- 
thority to  make  it,  for  his  making  it  is  an  admission.43  But 
if  the  statute  requires  his  contracts  to  be  in  writing,  and 
makes  it  unlawful  to  contract  otherwise,  the  other  party 
cannot  recover  without  proof  of  such  a  contract,  or  at  least 

4  E.  D.  Smith,  430.  Compare  is  declared  unconstitutional,  the 
Randall  v.  Smith,  1  Den.  214.  commissioners  are  not  personally 
One  seeking  to  compel  his  re-  liable.  Schloss  v.  Mclntyre,  147 
instatement  as  police  patrolman  Ala.  557,  41  So.  Rep.  11. 
must  show  that  the  office  legally  42  Hodgson  v.  Dexter,  1  Cranch, 
exists  and  that  he  has  occupied  it  345;  Streets  v.  Selden,  2  Wall.  187. 
in  a  de  jure  capacity.  Moon  v.  The  addition  of  a  title,  i.  e.,  "col- 
Mayor,  214  111.  40,  73  N.  E.  Rep.  lector,"  to  an  officer's  signature 
408.  would  not,  in  the  absence  of  other 

39  Parks  v.  Ross,  11  How.  U.  S.  facts,  prevent  him  from  being  per- 
362.  sonally  liable.     Rogers  v.  French, 

40  Olney  v.  Wickes,  18  Johns.  127;  214  Mass.  337, 101  N.  E.  Rep.  988. 
Lyon  v.  Irish,  58  Mich.  568,  25  See  also  Brown  v.  Bradlee,  156 
N.  W.  Rep.  517.  Mass.  28,  30  N.  E.  Rep.  85,  32 

«  Nichols  v.  Moody,  22  Barb.  Am.  St.  Rep.  430,  15  L.  R.  A.  509, 

611;  Holmes  v.  Brown,  13  Id.  599.  an  action  against  three  individuals 

Where  certain  commissioners  of  as  "Selectmen  of  Milton."    Com- 

a  city  under  an  act  passed  by  the  pare  Knight  v.  Clark,  48  N.  J.  L. 

legislature  purchase  certain  goods  22,  2  Atl.  Rep.  780,  57  Am.  Rep. 

and  the  seller  agrees  to  charge  the  534. 

city  and  not  the  commissioner  as          43  Shelbyville    v.    Shelbyville,    1 

agents,  and  subsequently  the  act  Mete.  (Ky.)  54,  57. 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 


551 


without  proving  part  performance  and  a  quantum  meruit.** 
The  government  is  not  bound  by  the  act  or  declaration  of  its 
officer  or  agent,  unless  it  manifestly  appear  that  he  acted 
within  the  scope  of  his  authority,  or  was  employed,  in  his 
capacity  as  public  agent,  to  do  the  act  or  make  the  declara- 
tion for  it.45 

To  charge  him  personally  there  should  be  satisfactory 
evidence  of  an  absolute  engagement  to  be  personally  liable.46 
Even  if  his  authority  proves  void,  yet  if  he  acted  hi  good 
faith,  and  within  his  instructions,  he  is  not  necessarily  per- 
sonally bound.47  When  it  is  sought  to  charge  him  individu- 


44  Clark  v.  United  States,  95 
U.  S.  (5  Otto),  539. 

"Whiteside  v.  United  States, 
93  U.  S.  (1  Otto)  247;  and  see 
Xoble  v.  United  States,  11  Ct.  of 
Cl.  608.  Compare  4  Abb.  New 
Cas.  450. 

The  statements  of  an  officer  of  a 
city  who  has  no  power  to  bind  the 
city  are  inadmissible.  Peters  v. 
Davenport,  104  la.  625,  74  N.  W. 
Rep.  6. 

The  legal  title  to  land  acquired 
by  a  county  cannot  be  disturbed 
by  the  declarations  of  its  agents 
and  officials.  Lamar  County  v. 
Talley  (Tex.  Civ.  App.)  94,  S.  W. 
Rep.  1069. 

The  admissions  of  the  president 
of  the  Water  &  Light  Commission 
of  a  municipality  are  not  binding 
upon  the  latter  where  the  charter 
gives  him  no  authority  in  matters 
concerning  which  the  admissions 
were  made.  Austin  v.  Forbis,  99 
Tex.  234,  89  S.  W.  Rep.  405,  rev'g 
86  S.  W.  Rep.  29. 

Declarations  of  an  ex-council- 
man of  a  municipality  made  after 
the  expiration  of  his  term  as  to  his 


knowledge  during  such  term  of  a 
defective  sidewalk,  are  not  ad- 
missible, as  he  cannot  bind  the  city 
after  his  term  expired.  Adkins  v. 
Monmouth,  41  Oreg.  266,  68  Pac. 
Rep.  737. 

Statements  by  a  third  person 
that  for  a  certain  sum  of  money  the 
harbor  commissioners  of  a  city 
could  be  induced  to  allow  certain 
conditions  to  remain  are  not  ad- 
missible if  the  person  making 
them  is  not  shown  to  be  connected 
with  the  commission  or  to  have 
any  authority  from  it.  Union 
Transportation  Co.  v.  Bassett,  118 
Cal.  604,  50  Pac.  Rep.  754. 

46  Hupe  v.  Sommer,  88  Kan.  561, 
564,  129  Pac.  Rep.  136, 43  L.  R.  A. 
N.  S.  565;  Parks  v.  Ross  (above), 
and    see    7    Opin.    of   Atty.-Gen. 
88.    Compare  Paulding  v.  Cooper. 
10  Hun,  20. 

47  Schloss  v.  Mclntyre,  147  Ala. 
557,   41    So.    Rep.    11;    Black   r. 
Brown,  196  111.  App.  508;  Hall  r. 
Lauderdale,  46  N.  Y.  70. 

The  rule  is  the  same  where  the 
officer  in  good  faith  exceeds  his 
authority.  Martin  r.  Schuermeyer, 


552  ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 

ally  on  his  contract,  his  communications  to  the  superior 
branches  of  his  government,  and  their  directions  to  him,  are 
competent  in  his  favor  for  the  purpose  of  showing  that  he 
acted  as  such.48  He  may  recover  on  an  apparently  personal 
contract,  though  made  with  his  official  addition, — such  as 
a  bank  deposit,  in  his  own  name,  with  the  addition  of  his 
title, — unless  the  defendants  show  that  they  are  liable  to  the 
government.49 

4.  Acts  by  Part  of  Board  or  Body. 

In  cases  where,  by  law,50  a  majority  of  a  board  or  body  51 
may  act,  provided  all  the  members  who  are  living  and  quali- 
fied,52 are  present  and  deliberate,  or  were  duly  notified, 
the  act  of  a  majority  of  the  officers  is  presumed  to  have  been 
upon  a  meeting  and  consultation  of  all.53  But  the  presump- 
tion may  be  rebutted.54 

6.  Demand  and  Notice. 

A  demand  must  be  made  in  a  reasonable  and  proper  man- 
ner; and  if  accompanied  by  gross  rudeness  and  insult,  is 
not  a  legal  demand;  but  such  misconduct  does  not  justify 
the  refusal  of  a  subsequent  proper  demand.55  Proof  of  the 
mailing  of  a  letter  to  a  public  officer  is  not  alone  sufficient 

30  Okl.  735,  121  Pac.  Rep.  248;  variable,   the  court  presumed  no 

Waldron     First     Natl.     Bank    v.  more    officers    than    the    lowest 

Whisenhunt,    94    Ark.    583,    588,  number,  in  order  to  support  the 

127  S.   W.   Rep.  968;  Coberly  v.  act  of  the  majority  of  that  num- 

Gainer,  69  W.  Va.  699,  703, 72  S.  E.  ber.      Jay   v.    Carthage,  48    Me. 

Rep.  790.  353. 

48  Bingham  v.  Cabbot,  3  Ball.  19,  62  People    ex   rel.    Kingsland    v. 
40.  Palmer,  52  N.  Y.  83;  People  ex 

49  Swartwout  v.  Mechanics'  Bank  rel.  Kingsland  v.  Bradley,  64  Barb, 
of  N.  Y.,  5  Den.  555.  228. 

«>  2  N.  Y.  R.  S.  555,  §  27;  Green  53  Doughty  v.  Hope,  3  Den.  249, 

v.  Miller,  6  Johns.  39.     Compare  594,  1  N.  Y.  79. 

Schuyler     v.     Marsh,    37     Barb.  54  Doughty  v.  Hope  (above). 

350.  55  Boyden  v.  Burke,  14  How.  U.  S. 

51  Where  the  statute  number  was  575,  583. 


ACTIONS    BY   AND   AGAINST    PUBLIC    OFFICERS  553 

evidence  of  notice  of  its  contents.56    Though,  together  with 
slight  evidence  of  actual  receipt,  it  may  be  sufficient. 

6.  Former  Judgments. 

A  former  judgment  does  not  necessarily  bind  the  officer 
in  a  new  action,  unless  he  appeared  in  the  same  capacity  in 
both.57  Where  an  officer  sues  in  his  representative  capacity, 
the  estoppel  created  by  the  judgment  is  available  in  favor 
of  those  whom  he  represented,  and  the  judgment  is  therefore 
conclusive  against  him  when  they  put  it  in  evidence  in  then* 
action  against  him.58 

H.  ACTIONS  BY   OFFICERS 

7.  Pleading  by  Officer  Suing  as  Such. 

In  an  action  by  a  public  officer  in  his  official  capacity,  if 
he  is  named  personally,  the  pleading  must  indicate  that  he 
sues  officially.  A  mere  addition  of  his  title,  without  any- 
thing to  indicate  that  he  sues  as  such  officer,  is  not  enough.59 

56  Huntley  v.  Whittier,  105  Mass,      ject-matter    of    the    two    actions 
391,  s.  c.,  7  Am.  Rep.  536.  being  such  that  the  determination 

A  notice  served  by  mail,  on  the  of  the  first  action  would  also  de- 
comptroller  of  a  municipality  in-  termine  the  second.  Zimmerman 
stead  of  the  corporation  counsel,  as  v.  Savage,  145  Ind.  124,  44  N.  E. 
required  by  law,  is  nevertheless  a  Rep.  252. 

sufficient  compliance  with  the  stat-  58  People  ex  rel.  Knapp  v.  Reeder, 

ute  where  it  appears  that  the  comp-  25  N.  Y.  302,  304. 

troller  transmitted  the  notice  to  59  Thus,  "John  Doe,  supervisor," 

the  corporation  counsel,  who  filed  &c.,    in    the    title,    is    not    alone 

it  and  acted  upon  it.    Missano  v.  enough.    Gould  v.  Glass,  19  Barb. 

New  York,  160  N.  Y.  123,  54  N.  E.  179.     But  commencing  the  com- 

Rep.    744.      See   also    Wieting   v.  plaint  as  "the  complaint  of  John 

Millston,  77  Wis.  523,  46  N.  W.  Doe,  as  supervisor,"  &c.,  is;  Smith 

Rep.  879.  v.  Levinus,  8  N.  Y.  472;  so  is  "John 

57  See  Rathbone  v.  Hooney,  58  Doe,  supervisor,  &c.,  complains." 
N.  Y.  463.  Fowler  v.  Westervelt,  17  Abb.  Pr. 

A  judgment  in  favor  of  one  officer  59,  s.  c.,  40  Barb.  374;  see  Rogers 
is  conclusive  in  another  action  v.  French,  214  Mass.  337,  101  N. 
against  a  different  officer,  the  sub-  E.  Rep.  988;  Brown  v.  Bradlee, 


554  ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 

But  if  it  appears  from  the  title  or  the  body  of  the  complaint 
that  he  complains  as  officer,  a  cause  of  action  accruing  to 
him  in  his  official  capacity,  may  be  proved,60  even  though  it 
arises  under  a  statute  authorizing  him  to  sue  on  behalf  of 
another  person  or  body,  and  there  is  not  express  allegation 
that  he  sues  for  their  benefit.61  Unless  the  regular  legal  title 
is  directly  involved  in  the  action,  he  need  not  aver  the  mode 
of  acquiring  the  office,  but  may  prove  his  official  character 
under  a  general  allegation  that  he  is,  and  was  at  the  times 
in  question,  such  officer.62 

8.  Proof  of  Title.63 

An  officer  suing  for  moneys  or  property  as  to  which  his 
only  title  is  by  virtue  of  his  office, — as  where  he  sues  for 
public  funds  which  he  is  to  administer, — must  show  a  legal 
title  to  the  office.64  It  is  not  enough,  that  he  is  an  officer 
de  facto.  According  to  the  English  doctrine,  however,  evi- 
dence that  he  was  acting  in  the  office  is  competent,  and 
sufficient,  at  least,  to  go  to  the  jury  (especially  where  he  sues 

156  Mass.  28,  30  N.  E.  Rep.  85,  ing  the  oath,  etc.     Willenburg  v. 

32  Am.  St.  Rep.  430,  15  L.  R.  A.  State,  12  Ind.  App.  462,  40  N.  E. 

509.  Rep.  547. 

60  See   Stilwell   v.    Carpenter,   2  While  the  acts  of  an  officer  de 
Abb.  New  Cas.  240,  and  note.  facto  are  valid,  in  so  far  as  the 

61  Griggs  v.  Griggs,  66  Barb.  291,  rights  of  the  public  are  involved 
300,  aff  d  in  56  N.  Y.  504.  and  in  so  far  as  the  rights  of  third 

62  Kelly   v.    Breusing,   33   Barb.  persons  having  an  interest  in  such 
123,  affi'g  32  Id.  601.  acts  are  concerned,  still,  where  a 

In  a  suit  brought  by  a  public  party  sues  or  defends  in  his  own 

officer  he  need  allege  only  that  he  right  as  a  public  officer,  it  is  not 

is  such  officer.    Pennoyer  v.  Willis  sufficient  that  he  be  merely  an  of- 

(Oreg.),  32  Pac.  Rep.  57.  ficer  de  facto.    To  do  this  he  must 

An  allegation  in  a  complaint  by  be  an  officer  de  jure.     An  officer 

an  officer  that  he  "duly  qualified  de  facto    can    claim    nothing    for 

and  entered  upon  his  duties"  is  a  himself.     People  v.  Weber,  89  111. 

sufficient   allegation  of  the  doing  347. 

of  everything  necessary  to  a  proper  63  See  paragraphs  1  and  13. 

qualification   as   contemplated   by  64  People  ex  rel.  Henry  v.  Nos- 

law,  such  as  filing  of  a  bond,  tak-  trand,  46  N.  Y.  375,  382. 


ACTTONS   BY   AND   AGAINST   PUBLIC    OFFICERS  555 

a  private  person),  from  which  the  jury  may  infer  regular 
legal  title,  even  although  the  title  is  put  in  issue.65  But  evi- 
dence that  he  has  not  taken  the  oath  or  given  the  bond  re- 
quired by  law,  is  competent  against  him.66 

9.  Process  as  Supporting  a  Cause  of  Action. 

An  officer  suing  by  virtue  of  process  issued  to  him,  and 
possession  under  it,  sufficiently  proves  his  authority  under 
it  by  producing  the  process,  if  fair  on  its  face,67  and  need  not, 
in  the  first  instance,  prove  the  judgment  or  order  on  which 
it  issued.68  But  the  defendant  may  impeach  the  process  for 
want  of  jurisdiction,  and  if  he  does  this  by  evidence,  the 
officer  must  establish  the  jurisdiction  or  his  action  fails. 

10.  Return,  Adduced  in  His  Own  Action. 

In  an  action  by  a  public  officer,  founded  on  his  own  official 
acts, — as  where  a  sheriff  sues  to  recover  goods  levied  on,69  or 
to  recover  the  purchase  money  of  land  sold  by  him, — his 
own  return  is  competent  prima  fade  evidence  in  his  favor,70 
It  is  a  general  principle  that  the  certificate  of  an  officer,  when, 
by  law,  evidence  for  others,  is  competent  testimony  for 
himself,  provided  he  was  competent,  at  the  time  of  making 

85  McMahon    v.   Lennard,   6  H.  he  will  be  deemed  to  have  aban- 
of  L.  Gas.  970;  Dexter  v.  Hayes,  doned  the  office.    He  cannot,  after 
11  Irish  L.  N.  S.  106,  aff'd  in  13  such  delay,  enforce  the  acceptance 
Id.  22;  Radford  v.  Mclntosh,  3  T.  of  his  bond  by  the  officer  whose 
R.  632;  Doe  d.  Bowley  v.  Barnes,  duty  it  is  to  file  it.    State  v.  John- 
8  Q.  B.  1037.    Having  dealt  with  son,  100  Ind.  489. 
the  officer  as  such,  deemed  an  ad-  6V  See  paragraph  19,  and  note, 
mission  of  his  title.    2  Whart.  Ev.,  68Earl  v.  Camp.  16  Wend.  562; 
§  1153.  Clearwater  v.  Brill,  63  N.  Y.  627; 
66  People  v.  Hopson,  1  Den.  579.  Kelly  v.  Breusing,  33  Barb.  123, 
Per  BRONSOX,  J.  affi'g  32  Id.  601;  Dunlap  v.  Hunt- 
Where,  by  statute,  an  officer  was  ing,  2  Den.  643. 
required  to  file  a  bond  within  10  °9  Cornell  v.  Cook,  7  Cow.  310. 
days  after  the  receipt  of  his  com-  Contra,  8  Pick.  397. 
mission  or  certificate  and  he  delays  70  Hyskill   T.    Givin,   7   Serg.   & 
such  filing  for  a  period  of  6  months,  Rawle,  369. 


556  ACTIONS   BY   AND    AGAINST   PUBLIC    OFFICERS 

it,  to  act  officially  in  the  matter.    Subsequently  acquired  in- 
terest does  not  affect  the  competency  of  the  certificate.71 

1 1 .  Action  for  Emoluments . 

In  his  action  for  salary  or  other  emoluments  belonging  to 
himself,  the  officer  sues  in  his  individual  capacity,  and  his 
regular  legal  title  at  the  time  for  which  he  claims  compensa- 
tion, is  in  issue  and  must  be  directly  proved,72  except  where 
he  sues  private  persons  for  services  which  would  be  valid 
if  rendered  by  an  officer  de  facto,  and  which  they  have  ac- 
cepted.73 Evidence  of  general  usage  may  be  competent  to 
show  the  measure  though,  not  the  right  to  compensation.74 
The  official  audit  or  taxation  of  his  fees  by  the  proper  officers, 
such  as  a  board  of  supervisors,  having  jurisdiction  is  con- 
clusive.75 

IE.  ACTIONS  AGAINST  OFFICERS 

12.  Plaintiff's  Pleading. 

In  an  action  against  a  public  officer,  for  a  wrong  not  in- 
volving the  violation  of  any  official  duty  he  or  his  predeces- 
sor owed  to  plaintiff,  the  cause  of  action  may  be  proved, 
although  the  complaint  does  not  allege  that  he  was  such 
officer,76  but  where  the  breach  of  such  a  duty  is  involved,  the 

71  McKnight  v.  Lewis,  5  Farb.  Another     exception     has     been 
681.     A   return,   contrary   to   the  made  of  the  case  where  a  de  facto 
fac  ,  if  it  has  been  canceled  by  officer,   suing  for  emoluments,   is 
leave  of  the  court,  does  not  estop  the  only  person  claiming  or  hav- 
him.    Bar  er  v.  Binninger,  14  N.  ing  a  right  to  claim  the  salary  in 
Y.  270.  question.      Elledge    v.    Wharton, 

72  Henderson  County  v.  Dixon,  89  S.  C.  113,  71  S.  E.  Rep.  657. 

63  S.  W.  Rep.  756,  23  Ky.  L.  Rep.  74  United   States   v.   Fillebrown, 

1204;  People  ex  rel.  Morton  v.  Tie-  7  Pet.  28. 

man,  8  Abb.  Pr.  359  (ALLEN,  J.);  75  Supervisors    of    Onondaga    v. 

Dolan  v.  Mayor,  &c.,  of  N.  Y.,  68  Briggs,  2  Den.  26,  40;  but  compare 

X.  Y.  278.    See  Gay  v.  City  of  U.  S.  v.  Smith,  1  Wood.  &  M.  184. 

Chicago,  124  111.  App.  586.  "Curtis  v.   Fay,  37  Barb.   64; 

73  See  Sawyer  v.  Steele,  3  Wash.  Dennis  v.  Snell,  54  Id.  411. 

C.  Ct.  464;  Hunter  v.  Chandler,          A  complaint  against  an  officer 
45  Mo.  452.  for  failure  to  collect  certain  fines 


ACTIONS    BY    AND    AGAINST   PUBLIC    OFFICERS 


557 


complaint  should  designate  him  as  such  officer,  and  aver 
him  to  be  such.77  But  an  allegation  that  he  collected  plain- 
tiff's money  on  process,  need  not  add  that  he  received  it  as 
such  officer.78  And  even  where  defendant  is  not  sued  in  his 
official  capacity,  evidence  of  moneys  received  in  that  capac- 
ity is  admissible.79 

13.  Plaintiff's  Proof  of  the  Official  Character  of  Defendant 
or  His  Deputy. 

In  a  private  action  against  an  alleged  officer,  parol  evi- 
dence of  his  official  character  is  admissible,  notwithstanding 
there  is  a  record.80  And  evidence  that  he  assumed  to  act  as 
such  officer  hi  the  matter  in  question,  is  conclusive  against 
him  as  an  estoppel.81  But  to  charge  him  with  responsibility 
for  a  deputy  or  other  subordinate,  the  appointment  must  be 
shown,  either  by  producing  the  original  on  file,82  or  by  evi- 


which  does  not  state  circumstances 
to  show  that  it  was  his  duty  to 
collect  such  fines,  is  demurrable. 
Burns  v.  Moragne,  128  Ala.  493, 
29  So.  Rep.  460. 

"Formerly  it  was  held  that  if 
title  was  averred  and  put  in  issue, 
the  pleader  might  be  held  to  prove 
legal  title.  1  Greenl.  Ev.  115,  §  92. 
The  better  opinion  under  the  new 
procedure  is,  that  if  the  mode  of 
acquiring  title  is  not  in  issue, 
proof  that  he  was  an  officer  de 
facto  is  admissible  under  allegation 
of  official  character. 

"Armstrong  v.  Garrow,  6  Cow. 
465. 

79  Walton  v.  U.  S.,  9  Wheat.  651. 

80  Dean   v.    Gridley,    10   Wend. 
254. 

81 1  Greenl.  Ev.,  13th  ed.  245, 
§  207;  Lister  v.  Priestly,  Whightw. 
67;  Rosc:  N.  P.  70. 

In    an    action    brought    by    A 


against  a  municipality  for  dam- 
ages to  his  private  property,  result- 
ing from  an  alteration  in  the  street 
grade,  A,  who  was  mayor  of  the 
town,  testified  that  B  was  city 
engineer  at  a  certain  time  and  that 
B  fixed  the  grade  for  A.  Held, 
that  A  by  reason  of  his  official 
position  was  deemed  to  know  who 
was  city  engineer;  that  it  was  suf- 
ficient, under  the  circumstances, 
to  prove  that  the  officer  acted,  and 
was  recognized,  as  such.  The  tes- 
timony of  A  was  accordingly  held 
admissible.  Mauldin  v.  Greenville, 
64  S.  C.  444,  42  S.  E.  Rep.  202. 

The  testimony  of  a  police  judge 
to  the  effect  that  he  held  such  of- 
fice is  insufficient  as  proof  of  his 
appointment  but  the  insufficiency 
must  be  raised  by  objection;  other- 
wise it  is  deemed  waived.  De  Soto 
v.  Brown,  44  Mo.  App.  148. 

82  Curtis  v.   Fay,  37  Barb.  64. 


558 


ACTIONS   BY   AND   AGAINST   PUBLIC   OFFICERS 


dence  that  the  latter  acted  as  such  with  his  knowledge  and 
assent.83  Neither  the  appointment  of  the  deputy,  nor  his 
relation  to  his  principal,  can  be  proved  merely  by  his  acts,84 
or  his  testimony  that  he  acted  as  such 85  Evidence  that  the 
subordinate  appointment  is  irregular,  does  not  render  the 
principal  or  appointing  officer  liable  for  the  acts  of  the  sub- 
ordinate as  if  they  were  done  without  authority,  provided 
the  subordinate  was  an  officer  de  facto.86 

14.  Cause  of  Action. 

The  burden  of  proving  affirmatively  a  breach  of  official 
duty  complained  of,  is  upon  the  plaintiff,  who  must  show 
every  fact  necessary  to  constitute  such  breach,  and  without 
it  damages  will  not  be  presumed.87  To  charge  one  officer, 
the  court  will  not,  without  evidence,  presume  that  the  prec- 
edent duty  of  another  officer  was  performed.88  An  officer, 


A  certified  copy,  unless  made  evi- 
dence by  statute,  is  inadmissible 
for  this  purpose,  without  excusing 
the  absence  of  the  original.  Ib. 

83  Boardman     v.     Halliday,     10 
Paige,  223,  230;  Sprague  v.  Brown, 
40  Wis.  612. 

Parol  evidence  may  be  sufficient. 
Mann  v.  Martin,  82  Ky.  242.  See 
Mathis  v.  Carpenter,  95  Ala.  156, 10 
So.  Rep.  341, 36  Am.  St.  Rep.  187. 

84  Meyer  v.  Bishop,  27  N.  J.  Eq. 
141.     Contra,  Briggs  v.  Taylor,  35 
Vt.  57,  67. 

85  Curtis  ».  Fay,  37  Barb.  67. 

86  Hamlin  v.  Dingman,  5  Lans. 
61.     Contra,  Cummings  v.  Clark, 
15  Vt.  653. 

87  Craig  v.  Adair,  22  Ga.  373. 
"A  private  person  can  recover 

from  the  officer  only  when  he  can 
show  that  he  has  a  direct  interest 
in  the  duty  to  be  performed,  and 
that  a  special  damage  to  himself, 


has  resulted  as  the  natural  conse- 
quence of  the  wrongful  act  or  fail- 
ure to  act,  and  it  is  immaterial  that 
the  duty  is  primarily  imposed  on 
public  grounds.  The  right  of  ac- 
tion springs  from  the  fact  that  the 
private  individual  receives  a  spe- 
cial injury  from  the  neglect  of  the 
performance  of  a  duty  which  it 
was  the  purpose  of  the  law  to  im- 
pose partly  for  his  benefit."  State 
v.  Lane,  184  Ind.  523,  111  N.  E. 
Rep.  616. 

88  Id.  The  presumption  in  favor 
of  official  acts  is  not  to  be  pressed 
too  far.  When  invoked  in  lieu  of 
direct  evidence,  it  cannot  serve  as 
a  substitute  for  all  other  evidence 
of  an  independent  and  material 
fact.  It  aids  general  evidence  by 
dispensing  with  proof*  of  mate- 
rial circumstances  and  incidents. 
United  States  v.  Ross,  92  U.  S. 
(Otto)  281,  285. 


ACTIONS    BY    AND    AGAINST    PUBLIC    OFFICERS  559 

especially  when  acting  under  the  sanction  of  an  oath,  or  in 
whom  government  reposes  trust,  is  presumed  to  have  done 
his  duty  until  the  contrary  be  proved;  and  this  principle 
applies  in  favor  of  the  officer  as  well  as  in  favor  of  strangers.89 
And  when  an  officer  is  charged  with  fraud  or  conspiracy  in 
the  discharge  of  his  duties,  the  presumption  of  innocence 
is  strong  in  his  favor,  but  it  may  be  overcome  by  evidence 
of  other  similar  delinquencies.90  To  charge  an  officer  with 
neglect  to  execute  process,  the  plaintiff  cannot  rely  on  the 
rule  that  process  valid  on  its  face,  etc.,  is  a  protection.  The 
officer  is  not  bound  to  act,  if  the  process  or  judgment  is  void 
for  want  of  jurisdiction.91  The  admissions  and  declarations 
of  a  subordinate,  who  was  not  the  general  agent  and  rep- 
resentative of  the  defendant,  are  not  competent  against  the 
defendant,  unless  within  his  authority,92  or  part  of  the  res 
gestfe.  It  is  not  enough  that  they  were  made  before  his  term 
expired,93  nor  that  they  were  against  interest,  and  he  has  sub- 
sequently died.94 
The  acts  of  a  public  officer,  on  public  matters  within  his 

89Hickman  v.  Boffman,  Hard.  v.  Baker,  101  Mo.  407, 14  S.  W.  Rep. 
(Ky.)  348.  Thus,  the  fact  that  a  175,  20  Am.  St.  Rep.  618;  Wash- 
sheriff  made  a  levy  is  presumed  in  ington  v.  Hospital,  43  Kan.  324, 
support  of  his  justification  under  23  Pac.  Rep.  564,  19  Am.  St.  Rep. 
process.  Hartwell  v.  Root,  19  141;  Fisher  v.  Betts,  12  N.  D.  197, 
Johns.  345.  96  N.  W.  Rep.  132. 

Until  the   contrary  appears,  it  90  Bottomley  v.  U.  S  ,  1  Story  C. 

must  be  assumed  that  public  of-  Ct.  135.   As  to  evidence  of  motives, 

ficials  obeyed  the  law.     People  v.  see  Gregory  v.  Brooks,  37  Conn. 

Dalton,  46  N.  Y.  App.  Div.  264,  365;  Moran  v.  McClearns,  4  Lans. 

61  N.  Y.  Supp.  263.  288;  Wilkes  v.  Dinsman,  7  How. 

An  officer  of  a  city  must  be  pre-  U.  S.  89. 

sumed  to  have  discharged  his  duty  91  Cornell  v.  Barnes,  7  Hill,  35; 

in  the  absence  of  allegations  to  the  Housh  v.  People,  75  111.  487. 

contrary.     Scott  v.  State,  43  Fla.  92  Green  v.  Town  of  Woodbury, 

396,  31  So.  Rep.  244.  48  Vt.  5. 

The  presumption  always  is,  in  93  Burgess  v.  Wareham,  7  Gray 

the  absence  of  any  showing  to  the  (Mass.),  345. 

contrary,  that  public  officers  per-  94  Lawrence  v.  Kimball,  1  Mete, 

form  their  duties  rightly.     Owen  (Mass.)  524. 


560 


ACTIONS   BY   AND    AGAINST   PUBLIC    OFFICERS 


jurisdiction,  and  where  he  has  a  discretion,  are  presumed 
legal,  till  shown  to  have  been  unjustifiable.  This  presump- 
tion avails  in  his  own  favor  when  he  is  sued.95  To  sustain  a 


95  It  rests  not  merely  on  the  pre- 
sumption of  innocence,  but  also 
on  grounds  of  public  policy.  Wilkes 
v.  Dinsman,  7  How.  U.  S.  130. 

Where  a  clerk  fails  to  file  a  re- 
mittitur  within  the  statutory  period 
of  four  months,  it  will  be  presumed 
that  it  was  because  the  fee  for 
filing  had  not  been  paid  or  tendered, 
or  that  there  was  some  other  suf- 
ficient cause.  Mabb  v.  Stewart, 
7  Cal.  Unrep.  Cas.  186,  77  Pac. 
Rep.  402. 

The  law  presumes  that,  when 
officers  of  a  municipality  issue  their 
obligations,  they  are  issued  for 
lawful  corporate  purposes,  and  that 
they  act  within  the  scope  of  their 
powers.  Custer  County  v.  De 
Lana,  8  Okla.  213, 57  Pac.  Rep.  162. 

The  presumption  that  a  county 
surveyor  did  his  duty  and  complied 
with  the  statute  in  choosing  dis- 
interested assistants  will  prevail  in 
the  absence  of  proof  to  the  con- 
trary. Christ  v.  Fent,  16  Okla. 
375,  84  Pac.  Rep.  1074. 

When  it  is  the  duty  of  a  clerk  to 
administer  the  oath  to  parties 
applying  for  registration  for  elec- 
tion, and  an  affidavit,  upon  which 
the  clerk  had  omitted  the  jurat, 
is  inserted  in  the  precinct  register 
as  that  of  a  person  entitled  to  vote, 
the  court  is  justified  in  presuming 
that  the  clerk  discharged  lu's  duty 
and  administered  the  necessary 
oath,  but  neglected  certifying  the 
fact.  Huston  v.  Anderson,  145 
Cal.  320,  78  Pac.  Rep.  626. 


An  officer  will  be  protected  by 
the  presumptions  of  law  in  the 
performance  of  the  duties  required 
of  him,  unless  it  is  clearly  shown 
that  his  motives  are  private  and 
malicious,  and  that  he  has  wan- 
tonly and  unnecessarily  used  the 
power  incident  to  his  official 
station  to  gratify  a  personal  spirit 
of  revenge.  Gregory  v.  Brooks, 
37  Conn.  365. 

Where  election  officers  open  a 
ballot  box  in  order  to  remove  an 
obstruction  which  prevented  ballots 
from  being  passed  through,  it  will 
not  be  necessary  in  a  subsequent 
suit  for  the  officers  to  show  that 
they  locked  the  box  after  they  re- 
moved the  obstruction.  The  law 
will  presume  that  they  did  their 
duty  and  that  they  relocked  the 
box.  Graham  v.  Graham,  24  Ky. 
Law.  Rep.  548,  68  S.  W.  Rep. 
1093. 

Where  a  public  election  has  been 
held  the  results  of  it  will  be  sus- 
tained unless  it  is  clearly  and  af- 
firmatively shown  that  there  has 
been  fraud.  Motley  v.  Wilson, 
26  Ky.  Law  Rep.  1011,  8:  S.  W. 
Rep.  1023. 

The  presumption  is  that  the 
commissioners,  appointed  by  the 
board  of  supervisors  of  a  town, 
make  and  file  their  reports  as  re- 
quired by  law.  Matter  of  Webster, 
106  N.  Y.  App.  Div.  360,  94  N.  Y. 
Supp.  1050,  aff'd  in  186  N.  Y.  549, 
79  N.E.  Rep.  11 18. 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS  561 


private  action  against  him,  it  must  be  shown  that  he  exer- 
cised the  power  confided  to  him  in  a  case  without  his  juris- 
diction, or  hi  a  manner  not  confided  to  him,  as  with  malice, 
cruelty,  or  wilful  oppression.96  In  case  of  a  judicial  officer 
malice  is  not  enough.97 

15.  Return,  as  Evidence  Against  the  Officer. 

As  against  the  officer,  and  those  claiming  hi  privity  with 
him,  his  return  98  is  conclusive  "  as  to  his  acts  l  stated  hi  it, 
within  the  scope  of  his  duty,  as  evidence  in  favor  of  parties 
who  claim  an  interest  or  right  under  the  return; 2  and  when 


96  See  note  95. 

97  Lange  v.  Benedict,  8  Hun,  366, 
aff'd  in  73  N.  Y.  12. 

98  And  the  principle  extends  to 
his  indorsement  upon  an  execution, 
of  the  time  of  its  receipt.    Williams 
v.  Lowndes,  1  Hall,  579.    So  also 
of  a  deputy's  return,  offered  in  evi- 
dence against  the  sheriff.    Sheldon 
v.  Payne,  7  N.  Y.  453.    That  the 
power   to    return   is    a   common- 
law    power,    see    McCullough    v. 
Commonw.,  67  Penn.  St.  30. 

The  return  of  a  sheriff  upon  a 
process  in  his  hands  a 3  to  his  official 
acts  properly  done  thereunder  is 
conclusive  upon  the  parties  to  the 
action  and  their  privies,  and  cannot 
be  collaterally  impeached,  but 
must  be  set  aside,  if  at  all,  in  some 
direct  proceeding  brought  for  the 
purpose.  Toepfer  v.  Lampert,  102 
Wis.  465,  78  N.  W.  Rep.  779; 
Yatter  v.  Pitkin,  72  Vt.  255,  47 
Atl.  Rep.  787;  Sawyer  v.  Harmon, 
136  Mass.  414. 

The  return  may  be  contradicted 
when  the  question  of  jurisdiction 
of  the  parties  arises,  and  it  may  be 
shown  that  jurisdiction  was  never 


in  fact  obtained,  notwithstanding 
recitals  to  that  effect  in  the  record. 
Toepfer  ».  Lampert,  102  Wis.  465, 
78  N.  W.  Rep.  779;  St.  Sure  ». 
Lindsfelt,  82  Wis.  346,  52  N.  W. 
Rep.  308,  33  Am.  St.  Rep.  50, 
19  L.  R.  A.  515. 

"Sheldon  v.  Payne  (above). 

In  a  suit  against  a  sheriff  upon 
his  official  bond,  he  is  concluded  by 
his  return.  Breckenridge  Merc. 
Co.  v.  Bailif,  16  Colo.  App.  554, 
66  Pac.  Rep.  1079. 

In  an  action  of  scire  facias  the 
return  of  an  officer,  in  the  absence 
of  fraud,  is  conclusive.  Yatter 
v.  Pitkin,  72  Vt.  255,  47  Atl.  Rep. 
787;  Winchel  v.  Stiles,  15  Mass. 
230;  Cozine  v.  Walter,  55  N.  Y. 
304;  McArthur  v.  Pease,  46  Barb. 
(N.  Y.)  423. 

1  See  Splahn  v.  Gillespie,  48  Ind. 
397. 

2  As,  for  instance,  the  plaintiff, 
in  an  action  against  a  sheriff  for  a 
false  return;  or  an  action  for  not 
paying   over.     Sheldon   v.   Payne 
(above);  Armstrong  v.  Garrow,  6 
Cow.  465. 

When  a  sheriff  recites  in  his  re- 


562 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 


thus  conclusive,  not  even  the  officer,3  or  his  deputy,4  can 
testify  hi  contradiction  to  it.  But  returning  that  the  goods 
were  taken  as  property  of  A.  does  not  estop  him  from  show- 
ing that  they  were  not  in  fact  A.'s  property,5  or  that  plaintiff 
is  not  entitled  to  the  proceeds.6  And  he  may  prove  other 
facts  relevant  to  his  defense,  which  were  not  included  in 
nor  contradicted  by  his  return.7 

The  plaintiff,  although  suing  on  a  return,  may  contradict 
it,  for  instance,  by  denying  that  the  acts  were  done  by  his 
special  direction.8 

When  the  return  is  adduced  in  evidence  by  one  not  de- 
riving any  right  or  interest  under  it, — as,  for  instance,  when 
one  sues  for  an  alleged  wrongful  levy, — it  is  a  mere  admis- 
sion, and  only  prima  fade  evidence  against  the  officer.9 


turn  on  an  execution  that  the  pur- 
chase price  of  one  hundred  dollars 
was  paid  to  him,  it  concludes  all 
question  as  to  that  matter.  Mason 
T.  Perkins,  180  Mo.  702,  79  S.  W. 
Rep.  683, 103  Am.  St.  Rep.  591. 

3  Freem.  on  Ex.,  §  364,  n.  3. 

A  return  of  a  sheriff,  being  spe- 
cific and  not  uncertain,  is  conclusive 
and  it  is  not  competent  for  the 
sheriff  to  contradict  it.  Brechtel 
v.  Cortright,  13  Pa.  Super.  Ct.  384. 

A  legal  levy  having  been  made 
upon  certain  goods,  it  cannot  be 
denied  by  the  sheriff.  Cox  v. 
Patten  (Tex.  Civ.  App.),  66  S.  W. 
Rep.  64. 

4  Sheldon  v,  Payne  (above). 

5  Hopkins  v.  Chandler,  17  N.  J. 
L.  (2  Harr.)  299. 

A  sheriff  is  precluded  from  the 
assertion  of  a  different  title  to  the 
goods  seized  under  his  execution 
than  that  shown  to  have  been  ac- 
quired by  his  levy  of  the  process. 
Hopke  v.  Lindsay,  83  Mo.  App. 
85. 


•Id. 

7  Evans  v.  Davis,  3  B.  Monr. 
(Ky.)  346;  Freem.  on  J.,  §  366. 

In  a  suit  against  a  sheriff  upon 
his  official  bond,  he  is  concluded 
by  his  return.  He  cannot  be  per- 
mitted to  dispute  it.  The  return, 
if  not  in  accordance  with  the  facts, 
might  have  been  amended  in  the 
suit  in  which  the  writ  of  execution 
issued,  but  it  could  neither  be 
amended  nor  contradicted  by  the 
sheriff  in  the  suit  brought  against 
him.  Bishop  v.  Poundstone,  11 
Colo.  App.  73,  52  Pac.  Rep.  222; 
Grove  v.  Wallace,  11  Colo.  App. 
160,  52  Pac.  Rep.  639. 

« Townsend  v.  Olin,  5  Wend.  207. 

'Baker  v.  McDuffie,  23  Wend. 
291  (NELSON,  Ch.  J.);  Boynton  v. 
Willard,  10  Pick.  166.  This  dis- 
tinction rests  on  sound  principles 
and  the  highest  N.  Y.  authority. 
It  is  not  noticed  by  Wharton,  who 
gives  conflicting  rules  (2  Whart. 
Ev.,  §§  833a,  837,  1155);  nor  by 
Freeman  on  Ex.,  §  366,  who  regards 


ACTIONS   BY   AND   AGAINST   PUBLIC    OFFICERS 


563 


When  adduced  in  evidence  by  the  officer  himself  in  his  own 
defense,  whether  in  a  direct  action  for  a  false  return,  or  hi  an 
action  for  breach  of  duty,  it  is  not  conclusive  in  his  favor.10 
And  it  is  evidence  hi  his  favor  only  of  such  official  acts  as 
he  is  by  it  required  to  perform,  and  not  of  matters  stated  as 
an  excuse  for  their  non-performance.11 

The  return  which  is  conclusive  against  the  officer  is  not 
simply  his  indorsement  upon  the  process,  but  it  is  the  actual 
placing  of  it  in  the  office  from  which  it  is  issued.  Until 
then  he  may  change  the  indorsement,  and  afterwards  only 
by  permission  of  the  court.12  A  return  or  indorsement  made 
by  him  is,  though  not  filed,  competent  against  him  as  an 
admission,  and,  if  made  in  pursuance  of  his  duty,  is  com- 
petent in  his  favor,13  even  though  made  after  suit  is 
brought.14 


the  officer  as  always  concluded. 
See  also  Bullis  v.  Montgomery,  50 
N.  Y.  352,  rev'g  in  part,  3  Lans. 
255. 

The  return  of  a  proper  officer 
on  an  execution  is  conclusive  upon 
the  parties  to  that  proceeding. 
It  cannot  be  attacked  by  such  par- 
ties in  a  collateral  proceeding  to 
vary  or  to  contradict  it;  a  direct 
proceeding  must  be  had  for  that 
purpose  by  a  party  to  that  pro- 
ceeding. 

As  to  the  facts  which  the  officer 
is  required  to  state  in  a  return, 
the  return  is  prima  facie  but  not 
conclusive  evidence  for  or  against 
a  stranger  to  the  suit.  Holt  v. 
Hunt,  18  Tex.  Civ.  App.  363,  44 
S.  W.  Rep.  889. 

10Whitehead  v.  Keyes,  3  Allen, 
495,  s.  c.,  1  Am.  L.  Reg.  N.  S.  471, 
and  note  by  Redfield. 

The  recitals  in  the  return  of  a 
constable  are  only  prima  facie  evi- 


dence of  the  truth  of  the  facts 
stated,  in  a  subsequent  action 
against  the  constable  on  his  bond. 
State  v.  Devitt,  107  Mo.  573,  17  > 
S.  W.  Rep.  974,  28  Am.  St.  Rep. 
426;  Sanborn  v.  Baker,  1  Allen,  526; 
Smith  v.  Emerson,  43  Pa.  St.  456; 
Barrett  v.  Copeland,  18  Vt.  67, 
44  Am.  Dec.  362;  Splahn  v.  Gil- 
lespie,  48  Ind.  397. 

11  Browning  v.  Hanford,  5  Den. 
586,   rev'g  7   Hill,    120;   and  see 
Splahn  v.  Gillespie,  48  Ind.  397, 
affi'g  1  Wils.  228.     Contra,  Free- 
man on  Ex.,  §  366. 

12  Nelson  v.  Cook,  19  111.  440, 
455;  and  see  Barker  v.  Binninger, 
14  N.  Y.  270.     But  once  made, 
it  may  relate  back  to  the  return 
day.      Armstrong    v.    Garrow,    6 
Cow.  465. 

13  Glover  v.  Whittenhall,  2  Den. 
633. 

14  Bechstein  v.  Sammis,  10  Hun, 
585. 


564  ACTIONS   BY   AND    AGAINST   PUBLIC    OFFICERS 

16.  Public  Action  for  Refusing  to  Serve. 

In  a  prosecution  on  behalf  of  the  public,  for  refusing  to 
accept  office,  or  to  continue  its  exercise,  the  best  evidence  of 
appointment  must  be  produced; 15  and  it  is  not  enough  to 
prove  that  defendant  was  an  officer  de  facto.16 

17.  Pleading  by  Officer  Defendant. 

By  the  New  York  statute,17  in  every  action  against  a 
public  officer  for  his  official  acts,  though  not  in  actions  for 
nonfeasance,18  the  defendant  may  give  special  matter  in  evi- 
dence, under  the  general  issue,  without  notice.  When  he 
pleads  his  justification,  however,  he  must  do  so  strictly.1^ 

18.  Defendant's  Proof  of  Official  Character  in  Justification. 

If  defendant,  justifying  as  an  officer,  produces  the  record 
of  his  appointment  by  an  authority  having  apparent  juris- 
diction, this  is  conclusive;  20  and  if  there  be  no  writing  and 
none  required  by  law,  parol  evidence  is  competent  to  prove 
the  appointment.21  But  he  need  not  prove  that  the  ap- 
pointing power  was  de  jure.22  Whether  evidence  that  he 
himself  was  an  officer  de  facto  is  enough,  is  disputed.23 

15  Per  SAVAGE,  Ch.  J.,  Dean  v.  State  ex  rel.  Leonard  v.  Sweet,  27 

Gridley,  10  Wend.  254.  La.  Ann.  541. 

16Bentley  v.   Phelps,  27  Barb.          21Hoke  v.  Field,  10  Bush  (Ky.), 

524,  s.  P.,  Green  v.  Burke,  23  Wend.  144. 
490.  22  Stevens  v.  Newcorab,  4  Den. 

17  2  R.  S.  353,  §  15.  437. 

18  Fairchild  v.   Case,  24   Wend.          23  Three  rules  are  asserted  on  this 
380;   Persons  v.   Parker,  3  Barb,  point:  (1)  That  he  must  aVer  and 
249.  prove  that  he  was  legally  an  officer, 

19  Lawton   v.    Erwin,    9    Wend,  duly  elected  or  appointed  and  qual- 
233;  Dennis  v.  Snell,  54  Barb.  441.  ified  to  act  (Short  v.  Symmes,  150 
So  far  as  the  latter  case  holds  that  Mass.  298,  23  N.  E.  Rep.  42,  15 
new  matter   proved,   though   not  Am.  St.  Rep.  204;  Conover  v.  Dev- 
pleaded,  to  avoid  new  matter  in  lin,  15  How.  Pr.  478,  and  cases 
the  answer,  cannot  be  met  by  new  cited).     (2)  That  he  must  at  least 
matter  not  in  the  answer,  it  is  per-  show  color  of  election  or  appoint- 
haps  of  doubtful  soundness.  ment    from    competent    authority 

20  Wood  ».  Peake,  8  Johns.  69;  (State  v.  Carroll,  38  Conn.  449,  s. 


ACTIONS   BY   AND    AGAINST   PUBLIC    OFFICERS 


565 


19.  Process  as  a  Protection  to  Defendant. 

Where  the  person  against  whom,  or  whose  property,  proc- 
ess,24 or  a  warrant,25  or  order,26  has  been  issued  by  any 
tribunal  or  official  body  having  jurisdiction  of  the  subject, 
sues  the  officer  for  executing  it,27  the  process,  if  fair  on  its 
face,28  is  a  protection,  and  it  is  not  necessary  to  give  other 
evidence  of  jurisdiction  of  the  person  than  the  production 
of  the  process  or  order.29  If  process  or  a  warrant  signed  by 
public  officers,  and  produced  as  a  justification,  lack  their 


c.,  9  Am.  Rep.  409) ;  and  that  this  is 
prima  facie  sufficient  for  the  protec- 
tion of  an  officer  de  facto  (Willis  v. 
Sproule,  13  Kans.  257).  (3)  That 
he  may  prima  facie  establish  his 
official  character  by  proof  of  gen- 
eral reputation,  and  that  he  acted 
as  such  officer  (1  Dill.  M.  C.  295, 
note,  and  cases  cited;  Colton  v. 
Beardsley,  38  Barb.  29),  in  other 
matters  besides  those  in  question 
(Hutchings  v.  Van  Bokkelen,  34 
Me.  126). 

24  Savacool  v.  Boughton,  5  Wend. 
170,  180;  Parker  v.  Waldrod,   16 
Id.   514;   Morgan   v.   Oliver,    129 
S.  W.  Rep.  156. 

25  Chegaray  v.  Jenkins,  5  N.  Y. 
376,  380;  O'Mera  v.  Merritt,  128 
Mich.  249,  87  N.  W.  Rep.  197. 

28  Erskine  v.  Hohnback,  14  Wall. 
613.  If  the  proceedings  and  order 
of  a  board  of  public  officers,  such  as 
a  board  of  health,  are  relied  on  as  a 
justification  in  an  act  which,  if 
without  such  justification,  is  a 
serious  wrong,  strict  proof  of  the 
proceedings  may  be  required. 
Meeker  v.  Van  Rensselaer,  15 
Wend.  397.  Compare  Chap.  Ill, 
paragraphs  56-65. 

27  The  rule  is  the  same  as  against 


voluntary  assignees,  who  become 
such  after  a  levy.  Heath  v.  West- 
ervelt,  2  Sandf.  110. 

28  What  is  requisite  to  make  it 
fair  on  its  face  within  the  rule,  see, 
as  to  direction,  Russell  v.  Hubbard, 
6  Barb.  654;  name  of  party,  Farn- 
ham  v.  Hildreth,  32  Ind.  277,  281; 
1  Abb.  New  Cas.  309;  alterations, 
Wattles  *.    Marsh,   5   Cow.    176; 
amendable  defects,  seal,  etc.,  Dom- 
inick  v.  Backer,  3  Barb.  17;  com- 
pleteness,   Prell   v.   McDonald,   7 
Kans.  426;  process  functus  officio, 
State  v.  Queen,  66  N.  C.  615. 

Warrants  emanating  from  in- 
ferior magistrates  must  show  upon 
their  face  legal  authority  for  their 
issue.  Jacques  v.  Parks,  96  Me. 
268,  52  Atl.  Rep.  763.  See  also 
Heath  v.  Halfhill,  106  Iowa,  131, 
76  N.  W.  Rep.  522. 

29  Unless,  perhaps,  where  he  was 
the  actor  in  promoting  the  illegal 
proceedings.    Leachman  v.  Dough- 
erty, 81  111.  324.    As  to  necessity 
of  return,  see  2  Phil.  Ev.,  by  Edw. 
366;  Sheldon  v.  Van  Buskirk,  2 
N.  Y.  473,  476;  but  it  is,  it  seems, 
unnecessary.      Id.;    signature    es- 
sential, Barhydt  v.  Valk,  12  Wend. 
143. 


566 


ACTIONS   BY   AND    AGAINST   PUBLIC    OFFICERS 


official  additions,  parol  evidence  is  competent  to  show  that 
they  actually  held  the  offices  by  virtue  of  which  they  acted. 
And  where  jurisdiction  may  be  impeached,  it  will  usually 
be  enough,  for  the  purpose  of  protecting  the  officer,  to  show 
that  the  jurisdictional  facts  were  duly  alleged  in  the  applica- 
tion,30 unless  the  officer  was  the  applicant; 31  and  that  the 
process  was  issued  by  a  person  de  facto,  and  with  color  of 
title,  a  magistrate  such  as  has  jurisdiction.32  The  process, 
even  though  it  may  not  justify  the  taking,  may  be  admissible 
in  mitigation,  to  justify  the  entry  for  the  purpose  of  taking.33 
Where  the  act  is  sought  to  be  justified  by  instructions  from 
the  head  of  an  executive  department,  the  court  may  pre- 
sume in  the  officer's  favor  that  the  proper  direction  was 
given  by  the  chief  executive.  If  the  officer  is  sued  for  an 


80  Whitney  v.  Shufeldt,  1  Den. 
592;  Magerstadt  v.  People,  105  111. 
App.  316. 

"It  is  the  law  that  a  ministerial 
officer  is  protected  in  the  execution 
of  process,  when  it  issues  from  a 
court  of  general  jurisdiction,  al- 
though such  court,  in  fact,  has  no 
authority  in  the  particular  case, 
provided  it  appears  upon  the  face 
of  the  process  that  the  court  has 
jurisdiction,  and  nothing  appears 
to  apprise  the  officer  that  the  court 
has  no  authority.  But  it  is  also 
held  that  if  a  ministerial  officer 
executes  any  process  upon  the  face 
of  which  it  appears  that  the  court 
which  issued  it  had  not  jurisdic- 
tion of  the  subject  matter  nor  of  the 
person  or  the  process,  such  process 
will  afford  the  officer  no  protec- 
tion for  acts  done  under  it."  Cas- 
selini  v.  Booth,  77  Vt.  255,  59  Atl. 
Rep.  833. 

An  officer  who  seizes  property  by 
virtue  of  a  process  issuing  from  a 
court  having  no  jurisdiction  of  the 


subject  matter  of  the  process  is  a 
trespasser,  notwithstanding  that 
he  acted  in  good  faith  and  without 
malice.  Hamer  v.  White,  110  Ga. 
300,  34  S.  E.  Rep.  1001. 

31  An  officer  justifying  under  a 
summary  proceeding  in  his  favor, 
taken   by   an   inferior   magistrate 
who  was  only  authorized  to  act  on 
complaint  of  a  particular  officer 
must  show  that  he  was  such  officer. 
And  plaintiff  may  prove  that  he 
was  not.     Walker  v.  Moseley,  5 
Den.  102. 

32  Weeks  v.  Ellis,  2  Barb.  320; 
Wilcox  v.  Smith,  5  Wend.  233. 

If  the  process  issues  from  a  court 
of  competent  jurisdiction  and  it  is 
regular  on  its  face,  the  officer  ex- 
ecuting the  same  is  not  bound  to 
inquire  into  the  validity  of  the  pro- 
ceedings on  which  the  process  is 
based.  Wilbur  v.  Stokes,  117  Ga. 
545,  43  S.  E.  Rep.  856. 

83  Parker  v.  Waldrod,  16  Wend. 
514;  Paine  v.  Farr,  118  Mass.  74; 
Wilcox  v.  Jackson,  13  Pet.  498. 


ACTIONS   BY   AND    AGAINST   PUBLIC    OFFICERS  567 

act  of  subordinates,  performance  of  which  the  facts  show  it  to 
have  been  his  duty  to  direct,  the  court  may  presume  in  his 
favor  that  the  necessary  request  was  duly  given.34 

Where  a  third  person  sues  the  officer  for  enforcing  against 
him  process,  or  a  warrant  or  order  against  another,  the  officer 
must  produce  the  judgment,  or  other  foundation  of  the 
process.35  The  process  itself,  and  the  record  of  the  judgment 
or  decree,  if  any,  on  which  it  was  issued,  are  primary  evi- 
dence; and  unless  a  foundation  for  secondary  evidence  is 
laid,  they  cannot  be  proved  by  testimony  to  their  contents,36 
nor  to  an  admission  of  their  existence  by  the  adverse  party.37 

34  Rankin  v.  Hoyt,  4  How.  U.  S.  ment  regularly  issued.     Noble  v. 
327,  335.  Holmes,  5  Hill,  194. 

35  Parker  v.  Waldrod,  16  Wend.  3«  Stebbins  ».  Cooper,  4  Den.  191. 
514;  Jansen  v.  Acker,  23  Id.  480.  See  Adamson  v.  Noble,   137  Ala. 
And  if  he  seizes  under  an  attach-  668,  35  So.  Rep.  139. 

ment,  he  must  show  the  attach-          "Per  THOMPSON,  J.,  Jenner  v. 

Joliffe,  6  Johns.  9. 


CHAPTER  IX 


ACTIONS  BY,  AGAINST,  OR  BETWEEN  PARTNERS 


I.  ACTIONS  BY  PARTNERS. 

1.  Allegation  of  partnership. 

2.  Proof  of  partnership. 

3.  Parol  evidence  to  vary  the 

contract  sued  on. 

4.  Firm  books  as  evidence  in 

favor  of  the  firm. 

5.  Declarations. 

6.  Defendant's  evidence. 

7.  Matter  in  abatement. 

II.  ACTIONS  AGAINST  PARTNERS. 

8.  Allegation  of  partnership. 

9.  Proof  of  partnership. 

10.  Best    and     secondary    evi- 

dence. 

11.  Indirect    evidence    of   part- 

nership. 

12.  Holding  out  to  the  public. 

13.  Representations  to  particu- 

lar creditor. 

14.  Admissions  and  declarations 

to  prove  partnership. 

15.  Hearsay. 

16.  *  Ownership. 

17.  Dormant   and   secret   part- 

ners. 

18.  Community  of  profits;   the 

common-law  rule. 

19.  — the  English  rule. 

20.  Evidence,  in  respect  to  date. 

21.  Assumption  of  debts  by  in- 

coming partner. 

22.  Variance  as  to  the  number 

of  partners. 

23.  Presumption  of  partner's  au- 

thority. 
568 


24.  Evidence  as  to  the  scope  of 

the  business,  &c. 

25.  Evidence  of  express  author- 

ity. 

26.  Question    to    whom    credit 

was  given. 

27.  Parol  evidence  to  charge  firm 

on  individual  signature. 

28.  — on  deed. 

29.  Evidence  of  ratification. 

30.  Evidence  of  deceit  or  fraud. 

31.  Evidence  of  other  torts. 

32.  Admissions  and  declarations 

of  a  partner. 

33.  Acts,  admissions,  &c.,  after 

dissolution. 

34.  Notice. 

35.  Defendant's  evidence  to  dis- 

prove partnership. 

36.  Proof  of  a  limited  partner- 

ship. 

37.  Matter  in  abatement. 

38.  Evidence  of  known  want  of 

authority. 

39.  Transactions  in  the  interest 

of  one  partner. 

40.  Burden  of  proving  dissolu- 

tion and  notice. 

41.  Mode  of  proving  dissolution. 

42.  — notice. 

III.   RULES   PECULIAR   TO    SURVIV- 
ING PARTNERS. 

43.  Actions  by  survivor. 

44.  Actions  against  survivor. 

45.  Actions  against  representa- 

tives of  deceased  partner. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        569 


IV.  ACTIONS  BETWEEN  PARTNERS. 

46.  Allegation    and    burden    of 

proof  of  partnership. 

47.  Proof  of  partnership. 

48.  Order  of  proof. 

49.  Evidence  of  firm  and  indi- 

vidual transactions. 

50.  Title  to  real  property. 


51.  Evidence  to  charge  member 

with  assets. 

52.  Evidence  to  credit  member 

with  payment  of  share. 

53.  Partnership   books,   &c.,   as 

evidence. 

54.  Evidence  of  voluntary  settle- 

ment. 


I.  ACTIONS  BY  PARTNERS 

1.  Allegation  of  Partnership. 

An  allegation  of  partnership  between  plaintiffs  is  unnec- 
essary in  their  complaint,  unless  their  right  of  action  depends 
on  the  partnership.  When  a  joint  ownership  or  joint  con- 
tract will  enable  them  to  recover,  it  is  no  objection  to  the 
complaint  that  the  partnership  is  not  pleaded.38  If  plain- 
tiffs allege  their  partnership,  it  is  well  to  be  prepared  to  prove 
it,39  unless  admitted;  and  a  general  denial  is  not  an  admis- 
sion, but  puts  the  allegation  in  issue.40 

2.  Proof  of  Partnership. 

Partners  in  a  general  partnership,  suing  as  such,  may  prove 
their  partnership  by  the  testimony  of  a  partner,41  or  by  that 

38  Loper  v.  Welch,  3  Duer,  644. 

A  demurrer  to  a  complaint  on 
the  ground  that  it  does  not  affir- 
matively state  that  the  plaintiffs 
constitute  a  firm,  nor  who  compose 
the  firm,  is  frivolous.  Cowan  v. 
Baird,  77  N.  C.  201. 

3?  Cooper  v.  Coates,  21  Wall. 
105;  Millerd  v.  Thorn,  56  N.  Y.  404. 

An  answer  denied  any  informa- 
tion or  belief  as  to  the  partnership 
of  the  plaintiffs  and  further  alleged 
a  notice  to  them  not  to  deliver  the 
goods  which  were  the  subject  mat- 
ter of  the  suit.  It  was  held  that 
the  latter  allegation  implied  that 
the  plaintiffs  were  the  parties  with 


whom  the  defendant  was  dealing, 
which  entitled  them  to  recover 
whether  or  not  a  partnership  was 
proved.  Doll  v.  Goellner  Furni- 
ture Co.,  159  N.  Y.  Supp.  737. 

«Fetz  v.  Clark,  7  Minn.  217. 
The  fact  of  partnership,  though  it 
may  not  be  material  in  the  sense 
of  being  essential  to  a  recovery 
(Oechs  v.  Cook,  3  Duer,  161),  may 
be  material  to  a  set-off,  &c.,  and  as 
laying  a  foundation  for  admitting 
evidence  of  the  acts  and  declara- 
tions of  one  plaintiff  for  or  against 
both. 

41  See  Gates  v.  Manny,  14  Minn.  2 1 . 

A   partnership  may   be   proved 


570        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 


of  a  witness  who  has  done  business  with  them,42  or  for  them, 
—as  a  clerk,  for  instance; 43 — and  a  witness  who  knows  that 
they  have  done  business  as  such,  at  the  time  hi  question, 
or  other  times  reasonably  proximate,44  may  testify  directly 
to  the  fact  that  they  were  partners,  subject,  of  course,  to 
cross-examination  as  to  the  details.45  If  he  cannot  testify 
that  they  were  partners,  he  should  not  be  allowed  to  state 
his  opinion.  The  facts  being  brought  out,  the  question  of 
partnership  or  no  partnership  between  plaintiffs  is  one  of 
law  for  the  court.46  Evidence  that  the  plaintiffs  represented 


between  the  parties,  as  well  as 
with  others,  by  evidence  of  the 
acts,  dealings,  conduct,  admissions, 
and  declarations  of  the  parties 
themselves  as  well  as  direct  proof 
in  different  lines.  Jones  v.  Pur- 
nell,  21  Del.  444,  62  Atl.  Rep. 
149. 

"Gilbert  v.  Whidden,  20  Me. 
368. 

43  McGregor  v.  Cleveland,  5 
Wend.  475.  "The  usual  proof  of 
partnership  is  by  the  evidence  of 
clerks  or  other  persons  who  have 
done  business  with  the  parties  as 
partners;  and,  although  the  part- 
nership may  have  been  constituted 
by  indentures  or  other  writings, 
it  is  ordinarily  not  necessary  in  an 
action  between  the  partners  and  a 
third  person  to  produce  them. 
Their  declarations  in  transacting 
business  with  third  persons  may 
be  given  in  evidence  to  prove  their 
partnership;  and  the  entries  made 
in  then*  books  in  the  course  of 
business  are  evidence  of  the  same 
character  and  equally  competent." 
American  Credit  Indemnity  Co. 
v.  Wood,  38  U.  S.  App.  583,  589, 
73  Fed.  Rep.  81.  The  use  of  the 


words  "&  Co."  after  the  name  of 
an  individual,  raises  a  presumption 
of  a  partnership,  which,  unless  re- 
butted by  evidence,  is  conculsive. 
Henderson  v.  Ferryman,  114  Ala. 
647,  22  So.  Rep.  24. 

Employees  who  had  been  for 
many  years  with  the  defendant 
concern  which  was  doing  business 
as  "A.  R.  Clark  &  Co."  were  held 
competent  to  testify  whether  the 
firm  was  a  corporation  or  a  part- 
nership. Clark  v.  Hoffman,  128 
111.  App.  422,  428. 

44  See      Gilbert      v.      Whidden 
(above). 

45  Grew  v.  Walker,  17  Ala.  824. 
Any  person,  whether  a  member  of 

the  partnership  or  not,  was  compe- 
tent to  testify  as  to  who  composed 
the  firm  and  who  were  the  survivors 
thereof,  provided  he  spoke  from 
knowledge  of  the  fact.  Hodges  v. 
Tarrant,  31  S.  C.  608,  9  S.  E.  Rep. 
1038. 

46  Id.     As   to   proving   partner- 
ship under  foreign  law,  see  Bar- 
rows v.  Downs,  9  R.  I.  446,  s.  c., 
11  Am.  Rep.  283. 

What  constitutes  a  partnership — 
that  is,  the  legal  elements  of  a  part- 


ACTIONS,    BY   AGAINST,    OR   BETWEEN   PARTNERS       571 


themselves  to  be  partners, — as,  for  instance,  where  one  in- 
troduced the  other  to  witness  as  his  partner, — is  competent, 
for  partnership  may  be  proved,  even  in  favor  of  the  partners, 
by  the  acts  and  declarations  of  all,47  but  the  declarations  of 
one  partner,  or  the  testimony  of  a  witness  whose  only  in- 
formation is  by  such  declaration  or  hearsay,  is  not  alone 
enough.  And  evidence  that  defendants  were  universally 
understood  to  be  partners  is  not  competent  to  prove  the 
existence  of  that  relation  between  them.48  Plaintiffs  have 
the  means  of  proving  their  own  partnership;  and,  where  the 
fact  is  material,  may  be  held  to  strict  proof.49  If  a  written 
contract  sued  on  runs  to  the  plaintiffs  in  a  firm  style,  its 
production  is  sufficient  prima  facie  evidence  of  the  existence 
of  a  partnership,  as  against  defendants  who  have  signed  or 


nership — is  a  question  of  law  for  the 
court.  Whether  in  fact  a  partner- 
ship existed  between  the  parties 
is  a  question  of  fact  for  the  jury. 
Jones  v.  Purnell,  21  Del.  444,  62 
Atl.  Rep.  149. 

The  statement  of  a  layman  that 
another  is  his  "partner"  is  a  mere 
assertion  of  a  conclusion  based 
upon  what  he  may  think  consti- 
tutes a  partnership,  but  which 
may  not  conform  upon  a  critical 
analysis  of  the  facts  to  the  legal 
definition  thereof,  and  is  therefore 
inadmissible.  Bakmazian  v.  Tatos- 
ian  et  al,  161  N.  Y.  Supp.  450. 

In  determining  the  fact  of  part- 
nership the  testimony  of  witnesses 
who  give  their  general  under- 
standing or  opinion  concerning 
the  partnership  will  not  be  con- 
sidered— but  such  evidence  as 
tends  to  show  circumstances  sur- 
rounding the  parties  at  the  time 
is  competent.  Reeves  v.  Jordan, 
72  So.  Rep.  (Ala.)  322. 

"Gilbert   v.   Whidden,   20   Me. 


368.  Contra,  Lockridge  v.  Wilson, 
7  Mo.  560. 

The  declarations  of  one  person 
as  to  the  existence  of  a  partner- 
ship between  himself  and  another 
person  are  not  admissible  evidence 
s  gainst  the  latter  to  prove  the 
fact  of  partnership,  unless  they 
were  made  in  his  presence  or  fall 
within  the  exception  to  the  general 
rule  excluding  hearsay  evidence. 
Guin  v.  Grasselli  Chemical  Co., 
72  So.  Rep.  (Ala.)  413. 

"Stiewel  v.  Borman,  63  Ark. 
30, 37  S.  W.  Rep.  404. 

The  existence  of  a  partnership 
cannot  be  proved  by  general  re- 
pute; yet  when  the  fact  is  other- 
wise established,  general  notoriety 
in  the  neighborhood  may  be  proved 
as  competent  evidence,  to  charge 
a  resident  in  such  community 
with  knowledge  of  it.  Guin  v. 
Grasselli  Chemical  Co.,  72  So. 
Rep.  (Ala.)  413. 

49  McGregor  v.  Cleveland  (above) . 


572        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 

indorsed  it,50  but  unless  it  is  admitted  that  the  plaintiffs 
composed  the  firm,  they  must  give  some  evidence  of  the 
fact  beside  that  afforded  by  the  correspondence  of  surnames 
and  their  production  of  the  instrument  sued  on.51  Articles 
of  copartnership,  even  if  shown  to  exist,  need  not  be  pro- 
duced, unless  some  question  is  made  as  to  their  contents  or 
scope. 

3.  Parol  Evidence  to  Vary  the  Contract  Sued  On. 

Where  partners  sue  on  a  simple  contract  made  with  a 
member  of  the  firm  in  his  own  name,  they  may  show  by 
parol  that  the  contract  was  made  by  him  for  the  firm.52  The 
fact  that  it  was  made  in  his  name  throws  on  them  the  burden 
of  doing  so.  Evidence  that  the  consideration  proceeded 
from  the  firm  assets,  is  not  alone  enough.53  A  sealed  in- 
strument cannot  be  thus  varied  by  parol;  even  a  partner 
who  became  such  subsequent  to  the  contract,  cannot  sue 
thereon,54  unless  upon  evidence  that  he  has  been  recog- 

80  Griener   v.   Ulerey,   20   Iowa,  was  signed  by  only  one  of  the  two 

266.  firms    against    whom    the    action 

51  McGregor    v.     Cleveland,     5  was    brought.      Ropes   v.   Arnold, 
Wend.  475;  Barnes  v.  Elmbinger,  30  N.  Y.  Supp.  997,  81  Hun,  476. 

1  Wise.  56.  5S  See  Townsend  v.  Hubbard,  4 

Where    the   endorsement   on   a  Hill,  351;  Briggs  v.  Partridge,  64 

note    made    to    a    partnership    is  N.  Y.  362. 

special,   proof  of  the  partnership  54  Duff  v.  Gardner,  7  Lans.  165. 

must  be  given.     Boswell  v.  Dun-  Similarly,  in  the  case  of  parties 

ning,  5  Del.  231.  signing  an  instrument  as  "agents" 

52  Cooke  v.  Seely,  2  Exch.  745;  of  undisclosed   principals,   it  was 
s.  P.,  Coleman  v.  First  Nat.  Bank,  held  that  "where  an  instrument  is 
53  N.  Y.  388,  391.  under  seal,  no  person  can  sue  or  be 

In  an  action  upon  a  written  con-  sued    to    enforce    the    covenants, 

tract    not    under    seal    extrinsic  therein    contained,    except    those 

evidence  may  be  given  to  show  who  are  named  as  parties  to  the 

that  a  contract  was  made  on  behalf  instrument   and   who   signed   and 

of   the   parties   other   than   those  sealed    the    same."      Henricus    v. 

whose    names    appear   in    or    are  Englert,  137  N.  Y.  488,  499,  33 

signed  to  the  instrument,  and  to  N.  E.  Rep.  550.    Quoted  in  Belasco 

charge    such    other    parties.      In  Co.  v.  Klaw,  48  Misc.  (N.  Y.)  597, 

this   case   the   contract   produced  599,  97  N.  Y.  Supp.  112.    See  also 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS       573 

nized  as  a  joint  contractor  by  the  other  party.55  But  if  the 
sealed  contract  is  made  in  the  name  of  the  firm  or  all  the 
partners,  evidence  that  the  one  who  signed  and  sealed  had 
authority  from  the  others  to  do  so,  need  not  be  proved  for 
the  purpose  of  sustaining  their  action.56 

4.  Firm  Books  as  Evidence  in  Favor  of  the  Firm. 

Where  the  books  of  a  party  are  competent  in  his  own 
favor,57  the  books  of  a  firm  are  equally  so  in  their  favor, 
upon  the  same  conditions,  but  in  those  States  where  the 
suppletory  oath  of  the  party  is  requisite,  the  partner  who 
made  the  entries  must  be  called  for  the  purpose,  unless  he  is 
dead  or  has  gone  beyond  jurisdiction.58 

5.  Declarations. 

Evidence  of  the  declarations  of  the  partners  is  not  com- 
petent in  favor  of  the  firm,  except  to  establish  the  fact  of 
partnership,  or  under  the  rule  of  res  gestce,  or  on  other  grounds 
of  competency  common  to  the  declarations  of  other  classes 
of  parties.59 

6.  Defendant's  Evidence. 

Plaintiffs '  allegation  that  they  were  partners  is  conclusive 
on  them  so  far  as  to  render  evidence  of  the  admissions  and 
declarations  of  either  of  them,  made  while  he  sustained  that 
relation,60  competent  against  all,  and  under  this  rule,  the 

O'Brien   v.   Clement,    160   N.   Y.  59Crousne  v.  Fitch,  1  Abb.  Ct. 

Supp.  975.  App.  Dec.  475. 

55  Compare  Cramer  v.  Metz,  57  *>  A  statement  by  one,  who  be- 
X.  Y.  659.  came  partner  after  the  cause  of 

56  Gates  v.  Graham,   12  Wend,  action     arose,     is     not    evidence 
53.  against  his  copartner  who  sues  on 

67  Vosburgh  v.  Thayer,  12  Johns.  it.     Tunley  v.  Evans,  2  D.  &  L. 
461;  Tomlinson  v.  Borst,  30  Barb.  747;  Rose.  N.  P.  75. 
42;  Stroud  v.  Tilton,  4  Abb.  Ct.  Where  a  partnership  was  estab- 
App.  Dec.  324,  2  Phil.  Ev.  370,  lished  by  prima  facie  proof ,  the  dec- 
note  108.  larations  and   admissions   of  one, 

58  New  Haven  Co.  v.  Goodwin,  made  in  the  conduct  of  the  alleged 

42  Conn.  230.  partnership  business  were  submit- 


574        ACTIONS   BY,    AGAINST,   OB   BETWEEN   PARTNERS 

declaration  of  one,  that  the  cause  of  action  was  exclusively 
his  own,  is  competent  against  the  others.61  An  entry  in 
partnership  books  is  not,  even  against  a  member,  conclusive 
evidence  that  the  transaction  was  a  firm  transaction.62 

7.  Matter  in  Abatement. 

An  allegation  of  the  non- joinder  of  copartners  as  plaintiffs 
is  sustained  by  proof  that  some  of  those  alleged  were  co- 
partners; and  the  failure  to  prove  that  others  were  is  matter 
of  variance,  to  be  disregarded  unless  defendant  is  preju- 
diced.63 Under  the  new  procedure,  a  dormant  partner,  al- 
though one  of  the  real  parties  in  interest,  should  not  be  held 
a  necessary  coplaintiff; 64  and  evidence  showing  that  the 
partners  who  sue  are  "trustees  of  an  express  trust"  for  him, 
within  the  statute,65  clearly  dispenses  with  the  necessity  of 
joining  him.  So  also  would  evidence  that  the  contract  was 
taken  in  the  name  of  a  part  of  the  firm  by  assent  of  the 
others.66  Neither  evidence  that  a  third  person  employed 
by  plaintiffs  has  an  interest  in  the  profits  and  therefore  in 
the  recovery,67  nor  the  fact  that  he  was  a  nominal  partner, 

ted  to  the  jury,  along  with   the  Secor  v.  Keller,  4  Duer,  419.    The 

other  evidence,  as  tending  to  con-  soundness  of  this  case  is  doubtful 

firm  the  fact  and  define  the  scope  under  the  Code,  as  amended  in 

of  the  partnership.    Conner?;.  Ray,  1851.     See  Moak's  Van  Sant.  PI. 

195  Ala.  170,  70  So.  Rep.  130.  90,    118.     The   better  opinion   is 

61  Lucas  v.  De  la  Cour,  1  M.  &  S.  that  the  partnership  relation  is  it- 
249;  especially  if  part  of  the  res  self  sufficient  evidence  of  a  trust. 
gestce.    Atherton  v.  Tilton,  44  N.  See  also  Chew  v.  Brumagem,   13 
H.  452,  458.    As  to  the  effect  of  Wall.  497. 

such    evidence,   see   paragraph   1,          6S  N.  Y.  Code  Civ.  Pro.,  §  459. 
Chapter  VII.  of  this  vol.,  note  87.  M  Mynderse  ».   Snook,   1   Lans. 

62  Langton  v.  Hughes,  107  Mass.      488. 

272.    Compare  Farner  v.  Turner,  1  67  Lewis   v.   Greider,   51   N.   Y. 

Iowa,  53.  231,  affi'g  49  Barb.  606. 

63  See  Fowler  v.  Atlantic  Mut.  One  who  is  not  a  member  of  a 
Ins.  Co.,  8  Bosw.  332,  344.    Com-  firm,  but  who  is  entitled  to  a  share 
pare  paragraph  37.  of  the  profits  for  his  services  is  not 

64  This    was    the    common-law  a   necessary   party   to   an   action 
rule,  but  the  contrary  was  held  in  brought  by  the  firm,  and  it  needs 


575 


under  a  stipulation  that  he  was  to  have  no  interest,  but  to 
receive  wages  or  a  salary  only,68  is  enough  to  prove  him  a 
partner.69  If  the  existence  of  a  partner  who  is  not  joined, 
does  not  appear  in  the  complaint  nor  in  the  answer,  evidence 
of  the  fact  is  not  ground  for  dismissing  the  complaint.70 


II.  ACTIONS  AGAINST  PARTNERS 

8.  Allegation  of  Partnership. 

If  it  is  substantially  alleged  in  the  complaint  that  the  de- 
fendants contracted  as  partners,  the  fact  of  partnership 
will  be  put  in  issue  by  a  general  denial,71  though  not  by  a 


no  assignment  from  him  to  main- 
tain the  action.  Cassidy  v.  Hall, 
97  N.  Y.  159;  Richardson  v.  Hug- 
hitt,  76  N.  Y.  55,  32  Am.  Rep.  267. 

^Beudel  v.  Hettrick,  35  Super. 
Ct.  (3  J.  &  S.)  405. 

Showing  that  an  alleged  salaried 
employee  of  a  firm  had  power  to 
sign  notes  for  raising  funds  for  the 
firm  and  that  he  was  held  out  as  a 
member  of  the  firm,  will  establish 
him  to  be  a  partner.  Clarke  v. 
North,  151  N.  Y.  App.  Div.  337, 
135  N.  Y.  Supp.  422. 

A  participation  in  the  profits  of 
a  business  by  a  party  as  a  compen- 
sation for  his  labor  or  services  does 
not  make  him  a  partner.  Conk- 
lin  v.  Barton,  43  Barb.  (N.  Y.) 
435. 

69  Compare  paragraphs  11  to  19. 
See  Law  v.  Cross,  1  Black,  537. 
Declarations  of  the  omitted  one 
are  not  competent  to  prove  the 
partnership.     McFayden   v,   Har- 
rington, 67  N.  C.  29. 

70  Dickinson    v.    Vanderpoel,    2 
Hun,  626. 

71  See  paragraph  1. 


Where  the  complaint  alleges  a 
partnership  and  the  answer  denies 
it,  and  such  partnership  is  an  es- 
sential part  of  the  plaintiff's  case, 
it  must  be  proved.  Harvey  v. 
Walker,  59  Hun,  114,  13  N.  Y. 
Supp.  170. 

Where  the  joint  liability  is  de- 
nied by  a  part  of  the  defendants, 
the  burden  of  proof,  by  a  plea  ver- 
ified by  affidavit,  is  upon  the  plain- 
tiff to  show  the  joint  liability  of 
all  the  defendants,  including  those 
who  failed  to  file  pleas,  unless  he 
shall  amend  his  declaration  and 
dismiss  the  suit  as  to  such  of  the 
defendants  as  are  not  shown  to  be 
jointly  liable  with  the  others.  M. 
W.  Powell  Co.  v.  Finn,  198  111.  567, 
64  N.  E.  Rep.  1036. 

An  allegation  of  copartnership 
is  not  necessary  if  it  can  be  shown 
by  proof  that  the  goods  were  sold 
to  one  of  the  defendants  while  con- 
ducting business  in  which  both  of 
them  were  copartners  together, 
which  would  prove  the  allegation 
in  the  complaint  that  the  goods 
were  sold  to  the  defendants.  Wolf 


57(5        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 


denial  of  the  contract  alleged.72  Under  a  general  allegation 
of  partnership,  plaintiff  may  prove  a  supposed  special  part- 
nership under  the  statute,  and  the  violations  of  the  statute  re- 
lied on  as  rendering  the  defendant  liable  as  general  partner.73 
Where  a  joint  liability  appears  on  the  face  of  the  contract, 
a  partnership  need  neither  be  alleged  nor  proved; 74  and  the 
chief  effect  of  alleging  and  proving  it,  is  to  open  the  way  for 
admitting  more  freely  the  acts  and  declarations  of  one 
partner  against  the  others.75 

9.  Proof  of  Partnership. 

Plaintiffs  may  prove  defendant's  partnership  in  the  same 
way  in  which,  as  above  stated,  plaintiffs  may  prove  them- 
selves to  be  partners.76  The  existence  of  a  firm  may  be  in- 


v.  Strahl,  3  Silv.  Sup.  552,  7  N. 
Y.  Supp.  593. 

See  Richmond  v.  Boyd,  130 
Tenn.  187,  169  S.  W.  Rep.  755, 
holding  that  where  a  defendant  in 
his  unsworn  answer  denied  mem- 
bership in  the  alleged  partnership, 
the  issue  of  partnership  was  thereby 
raised. 

"Anable  v.  Conklin,  25  N.  Y. 
470,  affi'g  16  Abb.  Pr.  286.  Com- 
pare Oechs  v.  Cook,  3  Duer,  161. 

"Stone  v.  De  Puga,  4  Sandf. 
681.  See  paragraph  36. 

74  Kendall  v.  Freeman,  2  McLean, 
189. 

In  an  action  against  partners 
upon  a  partnership  obligation,  it 
is  not  necessary  to  allege  a  part- 
nership between  the  defendants, 
but  they  may  be  declared  against 
as  any  joint  debtors.  Pike  v.  Zadig, 
171  Cal.  273,  152  Pac.  Rep.  923. 

It  was  held  in  Smith  v.  Cain,  180 
Mo.  App.  457,  166  S.  W.  Rep.  653, 
to  have  been  long  settled  that  in 
an  action  against  several  defend- 


ants, an  allegation  of  partnership 
was  not  necessary  to  entitle  one  to 
offer  evidence  of  that  relation. 

Where  it  appeared  that  the 
plaintiffs  were  the  owners  of  the 
cause  of  action  upon  which  an  ac- 
tion was  based,  it  was  held  to  be 
immaterial  whether  they  held  it 
as  copartners  or  otherwise.  Klemik 
v.  Henricksen  Jewelry  Co.,  122 
Minn.  380, 142  N.  W.  Rep.  871. 

75  See  paragraphs  23,  32,  52. 
Where    the    complaint    asserts 

that  the  defendants  while  carrying 
on  a  business  as  copartners  be- 
came indebted  to  the  plaintiff,  and 
demands  judgment  against  them, 
a  joint  liability  is  alleged  and  the 
judgment  must  be  taken  against 
all  the  defendants,  although  only 
one  was  served.  Brandagee  v. 
Cleary,  152  N.  Y.  Supp.  628. 

76  Paragraph    2.      Widdefield    v. 
Widdefield,  2  Binn.   (Penn.)  245, 
s.  P.,  37  Penn.  St.  92,  and  cases 
cited. 

The  existence  of  a  partnership 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        577 

ferred  from  the  agreement  of  dissolution;  but  even  a  formal 
notice  of  dissolution  signed  by  all  the  members,  and  pub- 
lished, stating  a  dissolution  on  a  day  named,  is  not  conclu- 
sive evidence  against  them  that  the  firm  continued  until 
that  day.77  The  names  of  the  members  must  be  proved;  but 
slight  evidence  is  enough  to  go  to  the  jury.78  If  the  witness 
cannot  recollect  the  names,  a  list  of  names  may  be  read  to 
him,  and  he  may  be  asked  whether  those  persons  are  mem- 
bers.79 As  the  adverse  party  has  not  the  same  means  of 
knowledge,  he  is  not  to  be  held  to  make  so  strict  proof  of  the 
partnership  as  if  proving  his  own.80 

10.  Best  and  Secondary  Evidence. 

If  the  question  involves  the  construction  of  written  ar- 
ticles of  agreement,  they  should  be  called  for  as  a  founda- 
tion for  secondary  evidence.81  The  proper  certificates  of 
acknowledgment  or  proof  under  the  statute,  render  the  in- 
strument competent,  without  other  proof  of  execution.82 
And  the  whole  of  the  agreement  must  be  taken  together.83 
But  even  though  the  articles  do  not  establish  a  partnership, 

cannot  be  established  by  the  dec-  Wend.  475.  Thus,  if  plaintiff 
larations  of  one  of  the  partners.  proves  that  defendants  were  part- 
Franklin  v.  Hoadley,  145  N.  Y.  ners,  and  proves  a  contract  made 
App.  Div.  228,  130  N.  Y.  Supp.  by  one  member  signed  with  his 
47.  own  name  and  the  addition  "& 

After  a  prima  facie  case  as  to  Co.,"  this  is  enough  to  go  to  the 

partnership   is   made,   the   admis-  jury  without  proving  that  defend- 

sions  and  conduct  of  the  several  ants  did  business  under  that  name, 

partners  in  the  course  of  the  part-  Drake  v.  Whittaker,   1   Cai.   184, 

nership    business    are    admissible  KENT,  J. 

as  against  the  others.     Dennis  v.          81  Price  v.  Hunt,  59  Mo.  258.    As 

Kolm,  131  Cal.  91,  63  Pac.  Rep.  to  subpoena  duces  tecum,  and  notice 

141.  to  produce,  see  McPherson  v.  Rath- 

77  Emerson  v.  Parsons,  46  N.  Y.  bone,  7  Wend.  216. 
560,  affi'g  2  Sweeny,  447.  82  Mattison  v.  Demarest,  4  Robt. 

78Varnum  v.  Campbell,   1   Me-  161;  and  see  page  27  of  this  vol. 

Lean,  313.  paragraph  11. 

79  Acerro  v.  Petroni,  1  Stark.  100.          83  Manhattan    Brass    Manufac- 

80  See  McGregor  v.  Cleveland,  5  turing  Co.  v.  Sears,  1  Sweeny,  426. 


578        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 

it  may  be  established  by  parol  evidence.84  Parol  evidence 
is  competent,  even  for  the  purpose  of  proving  a  partnership 
in  transaction  hi  real  property.85  And  where  written  articles 
are  proved,  the  prior  existence  of  the  relation  may  still  be 
proved  by  parol.86 

11.  Indirect  Evidence  of  Partnership. 

A  partnership  may  be  shown  by  the  separate  admissions, 
acts,  declarations  or  conduct  of  the  parties,  or  by  the  act  of 
one,  the  declaration  of  another,  and  the  acknowledgment  or 
consent  of  a  third;87  and  it  matters  not  which  declaration 
is  offered  first.88  But  it  can  never  be  proved  in  this  way 
alone,  unless  the  evidence  fixes  such  a  concession  on  each 
or  all  of  those  charged.  The  concession  of  one  is  evidence 
against  himself,  but  not  against  another,  unless  shown  to 
have  been  authorized  or  ratified  by  that  other.89  To  admit 
such  evidence  generally,  as  if  competent  against  all,  where 
there  is  no  other  evidence  against  the  others,  is  error.90 

84  McStea  v.   Matthews,  50  N.          "  See    notes    to    paragraph    14, 
Y.  167.  and  also  Chapter  VII.     Whether 

85  Chester  v.   Dickinson,  54   N.      evidence  of  an  admission  of  his 
Y.  1,  8,  affi'g  52  Barb.  349.  own  liability  by  one,  coupled  with 

88  Id.  evidence  of  an  admission  of  liabil- 

87  Barcroft  v.  Haworth,  29  Iowa,  ity  as  a  partner  by  the  other,  is 

462.  enough,  compare  Mitchell  v.  Roul- 

Where  the  evidence  shows  that  stone,  2  Hall,  351;  and  Brahe  v. 

a  fire  loss  was  proved  and  collected  Kimball,  5  Sandf.  237. 

in   a   partnership   capacity,   it   is          "The  declaration  of  an  alleged 

strong  corroboration  of  the  alleged  member  of  a  partnership,  in  the 

partnership.  Thomas    v.    Mosher,  nature  of  an  admission  that  he  was 

128  111.  App.  479.  a  member   thereof,   is   admissible 

88Edwards».Tracy,62Pa.St.374.  for  the  plaintiff  on  the  trial  of  an 

Evidence  as  to  the  manner  of  action  against  the  firm,  to  which 

operating  property  as  to  how  each  the  declarant  has  interposed  the 

interested  party  participated,  and  defense    of    'no    partnership'    as 

the  disposition  of  the  profits,  is  to  him."      Gary    v.    Simpson,  15 

pertinent  on  the  inquiry  as  to  the  Ga.    App.    280,    82    S.    E.    Rep. 

existence  of  a  partnership.     Lutz  918. 

v.  Billick,  172  Iowa,  543,  154  N.          *>  Whitney  v.  Ferris,   10  Johns. 

W.  Rep.  884.  66.    The  usage  of  other  persons  is 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS       579 


12.  Holding  Out  to  the  Public. 

Without  other  evidence  of  a  partnership  hi  fact  as  between 
the  defendants,  liability  of  a  defendant  as  if  a  copartner  is 
established  by  evidence  that  he  held  himself  out,  or  suffered 
himself  to  be  held  out  to  the  world  as  a  partner; 91  and  for 
this  purpose  it  is  not  necessary,  at  least  hi  the  first  instance, 
to  prove  a  representation  to  the  plaintiff.92  Where  it  is 
proved  that  they  advertised  that  they  were  partners,  it  may 
be  presumed  that  the  plaintiff's  subsequent  dealings  were 
on  the  faith  of  the  partnership.93  A  nominal  partner,  held 


not  competent.  Foye  v.  Leighton, 
22  N.  H.  71. 

91  If  the  evidence  is  objected  to, 
the  offer  should  be  explicit,  and 
not  susceptible  of  being  understood 
as  an  offer  to  prove  general  repute. 
Bowen  v.  Rutherford,  60  111.  41, 
s.  c.,  14  Am.  Rep.  25. 

Although  the  parties  may  not 
in  fact  be  partners,  yet  they  may 
so  conduct  themselves  towards  a 
third  party  as  to  make  themselves 
liable  as  such.  Jones  v.  Purnell, 
21  Del.  444,  62  Atl.  Rep.  149. 

In  Fennell  v.  Myers,  25  Ky. 
Law  Rep.  589,  76  S.  W.  Rep.  136, 
it  was  held  immaterial  whether  or 
not  a  party  was  a  member  of  a 
firm,  if  he  held  himself  out  as  such 
or  knowingly  permitted  others  so 
to  hold  him  out  and  credit  was  ex- 
tended to  the  firm  in  reliance  upon 
such  representation. 

Where  one  permits  himself  to 
be  held  out  generally  as  a  partner, 
he  is  liable  to  one  who  relies  upon 
the  fact,  regardless  of  whether, 
there  was  an  actual  partnership  or 
not.  Conner  v.  Ray,  195  Ala.  170, 
70  So.  Rep.  130. 

91  For  this  purpose,  evidence  is 


competent  that  the  defendent  dealt 
as  a  copartner  of  the  other  defend- 
ants in  their  transactions  with 
third  persons.  Bennett  v.  Holmes, 
32  Ind.  108.  That  handbills,  bear- 
ing their  names  as  partners,  were 
circulated  by  the  defendant  (Wal- 
cott  v.  Caulfield,  3  Conn.  195);  or 
were  so  circulated  that  they  must 
reasonably  be  presumed  to  have 
come  to  his  notice  (Tumlin  v. 
Goldsmith,  40  Ga.  221;  compare 
McNamara  v.  Dratt,  33  Iowa,  385) ; 
that  merchandise  on  the  premises 
was  marked  with  their  firm  name 
(Penn  v.  Kearney,  21  La.  Ann.  21); 
and  that  they  suffered  judgment 
by  default  when  sued  as  partners 
in  another  action.  Cragin  v.  Carle- 
ton,  21  Me.  493;  compare  Hall  v. 
Larming,  91  U.  S.  (1  Otto),  160. 
So  a  contract  or  conveyance  made 
in  the  firm  name,  and  signed  by 
each,  though  foreign  to  the  matter 
in  suit,  is  competent  as  an  admis- 
sion. Crowell  v.  Western  Reserve 
Bk.,  3  Ohio  St.  406,  414.  So  is 
their  joint  application  for  a  license 
for  their  business.  Conklin  v.  Bar- 
ton, 43  Barb.  435. 

-3  Kelly  v.  Scott,  49  N.  Y.  595. 


580        ACTIONS   BY,   AGAINST,    OR   BETWEEN    PARTNERS 


out  as  such,  is  liable  though  having  no  interest,  and  receiv- 
ing only  wages,94  or  a  mere  compensation  for  the  use  of  his 
name.95  But  if  it  appear  that  plaintiff  was  ignorant  of  the 
representations,  or  did  not  deal  on  the  faith  of  them,  they 
are  not  conclusive,96  and  may  be  rebutted  by  evidence  that 
there  was  no  partnership  whatever,  active,  nominal  or  con- 
structive.97 

13.  Representations  to  Particular  Creditor. 

Proof  that  defendants  represented  or  conducted  themselves 
as  partners,  and  were  trusted  as  such  hi  the  dealing  in 
question,98  or  that  the  only  one  whose  relation  is  contested 
did  so,99  is  conclusive;  and  their  own  acts  and  declarations, 


94  See  Beudel  v.  Hettrick,  35 
Super.  Ct.  (J.  &  S.)  411. 

«  Poillon  v.  Secor,  61  N.  Y.  456. 
.The  better  opinion  is  that  a  general 
holding  out  is  enough  to  raise  a 
legal  presumption  of  partnership, 
irrespective  of  whether  the  repre- 
sentation was  brought  to  the  deal- 
er's notice.  Poillon  v.  Secor,  61 
N.  Y.  456;  Case  of  Wright,  26 
Weekly  R.  195,  s.  c.,  5  Rep.  670. 
Some  authorities  hold  that  plain- 
tiff must  prove  that  he  dealt  on  the 
faith  of  the  representation;  that 
mere  representations  to  third  per- 
sons are  not  competent.  Teller  v. 
Patten,  20  How.  U.  S.  125;  Bowen 
v.  Rutherford,  60  111.  41,  s.  c.,  14 
Am.  Rep.  25;  Heffner  v  Palmer,  67 
111.  161;  and  that  a  representation 
made  to  the  particular  creditor  is 
not  enough  to  take  the  case  from 
the  jury,  unless  made  before  credit 
given  or  contract  made.  Ridgway 
r.  Philip,  5  Tyrwhitt,  131.  These 
rulings  are  not  well  considered. 
But  on  a  question  of  priority  be- 
tween individual  and  partnership 


debts,  isolated  statements  to  a 
stranger  are  not  enough.  Case  of 
Wright  (above). 

^Bostwick  v.  Champion,  11 
Wend.  582,  NELSON,  J. 

97  Fitch  v.  Harrington,  13  Gray, 
468,  470. 

58  Johnston  v.  Warden,  3  Watts, 
101;  Kelly  v.  Scott,  49  N.  Y.  601. 

"Hicks  v.  Cram,  17  Vt.  449; 
Kelly  v.  Scott,  48  N.  Y.  601.  Even 
though  he  was  actually  a  special 
partner.  Barrows  v.  Downs,  9  R. 
I.  446.  Where  the  question  is 
'which  of  two  persons  of  the  same 
surname  was  the  partner,  evidence 
that  the  one  joined  as  defendant 
represented  himself  as  such  to 
plaintiff,  and  that  the  other  person 
was  unknown  to  plaintiff,  is  com- 
petent without  anything  to  con- 
nect the  other  defendant  with  the 
holding  out.  Hicks  v.  Cram,  17  Vt. 
449,  REDFIELD,  J.  A  letter  saying 
'that  the  writer  is  "interested"  in  a 
firm,  and  asking  credit  for  them, 
is  evidence  to  charge  the  writer  as 
a  member  for  credit  given  on  the 


ACTIONS   BY,   AGAINST,    OR   BETWEEN   PARTNERS       581 


showing  that  they  were  not  partners,  cannot  then  disprove 
their  liability.  Where  such  representations  are  proved,  evi- 
dence of  similar  representations,  made  at  about  the  same 
time  to  third  persons,  is  competent  in  corroboration.1  A 
representation  made  by  one  will  bind  the  others,  if  he  was 
authorized  by  them  to  make  it; 2  and  the  fact  of  his  authority 
may  be  proved  by  his  own  testimony. 

14.  Admissions  and  Declarations  to  Prove  Partnership. 

As  against  any  one  defendant,  whether  litigating  the  case, 
or  not  appearing,3  or  not  even  served,4  evidence  of  his  own  5 
admission,  whether  made  to  the  plaintiff,6  or  to  third  per- 
sons,7 and  whether  made  at  or  after  the  transaction  in  suit,8 
or  within  a  reasonable  time  before  it,9  is  competent  for  the 


faith  of  the  letter,  until  notice  of 
dissolution.  Carmichael  v.  Greer, 
55  Geo.  116. 

One  who  not  only  permitted  her- 
self to  be  held  out  generally  as  a 
partner  but  at  different  times  as- 
sured the  plaintiff  in  person  that 
she  was  a  member  of  the  concern, 
in  reliance  upon  which  fact  he  be- 
came a  creditor  of  the  firm  was 
held  to  be  liable,  whether  or  not  a 
partnership  relationship  actually 
existed.  Comer  v.  Ray,  195  Ala. 
170,  70  So.  Rep.  130. 

1  Hicks  v.  Cram  (above). 

2  Montgomery  v.  Bucyrus  Ma- 
chine Works,  92  U.  S.  (2  Otto)  257; 
Hinman  v.  Littell,  23  Mich.  484. 

3  Taylor  v.  Henderson,  17  Serg. 
&  R.  453,  457. 

The  statements  of  the  individual 
partners  are  competent  to  charge 
them  respectively  upon  the  ques- 
tion of  the  existence  of  the  partner- 
ship in  fact,  and  the  nature  and 
scope  of  its  business.  Smith  v. 
Collins,  115  Mass.  388. 


4  Grafton  Bank  v.  Moore,  14  N. 
H.  145,  146. 

6  As  to  admissions  made  by  an 
agent,  see  Campbell  v.  Hastings, 
29  Ark.  512;  Hoppock  v.  Moses,  43 
How.  Pr.  201.  Where  the  com- 
plaint alleges  that  several  defend- 
ants are  copartners,  the  declara- 
tions or  admissions  of  one  of  them 
that  they  are  such  copartners  are 
competent  evidence  against  him 
of  the  existence  of  such  copartner- 
ship, but  are  not  sufficient  to  charge 
the  others  as  partners.  Boosalis 
v.  Stevenson,  62  Minn.  193,  64  N. 
W.  Rep.  380. 

6  See  paragraph  13. 

7  Bennett  v.  Holmes,  32  Ind.  108, 
and  see  other  illustrations  in  note 
92  to  paragraph  12. 

8  Taylor  v.  Henderson,  17  Serg. 
&  R.  453,  457. 

9 Bennett  v.  Holmes  (above); 
Ralph  v.  Harvey,  1  Adol.  &  E.  X. 
S.  845,  849,  s.  c.,  41  Eng.  Com.  L. 
803. 


582        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


purpose  of  proving  the  existence  of  the  firm,10  his  own 
membership,11  who  were  his  copartners,12  and  what  was  the 
nature  arid  scope  of  the  business.13  But  such  evidence  is 
incompetent  as  against  any  other  than  the  declarant,  ex- 
cept in  connection  with  other  prima  facie  evidence  that  such 
other  was  a  partner  with  the  declarant,14  or  authorized  him 


10  Johnson  v.  Warden,  3  Watts, 
101. 

11  Edwards  v.  Tracy,  62  Penn. 
St.  374;  Crossgrove  v.  Himmelrich, 
54  Id.  203;  Fleshman  v.  Collier, 
47  Ga.  253. 

12  Taylor  v.  Henderson,  17  Serg. 
&  R.  453,  457. 

13  Smith   v.   Collins,   115   Mass. 
388,  399. 

'  The  admissions  of  each  partner 
are  competent  evidence  against 
the  party  making  such  admission. 
Armstrong  v.  Potter,  103  Mich. 
409,  61  N.  W.  Rep.  657. 

A  firm's  bank  pass-book  will  be 
admitted  in  evidence,  after  the 
partnership  has  been  proved,  and 
its  dealings  with  the  bank  and  the 
entry  by  the  latter  of  the  deposits 
and  withdrawals  in  the  book.  Ar- 
nold v.  Hart,  176  IU.  442,  52  N. 
E.  Rep.  936,  affi'g  75  IU.  App. 
165. 

14Pleasants  v.  Font,  22  Wall. 
120;  McPherson  v.  Rathbone,  7 
Wend.  216;  Robins  v.  Warde,  111 
Mass.  244;  Donley  v.  Hall,  5  Bush, 
549.  But  when  sufficient  evidence 
has  been  introduced  to  raise  a  fair 
presumption  of  the  existence  of 
the  partnership,  the  acts  and  dec- 
larations of  each  are  admissible 
against  the  others  to  strengthen 
the  prima  fade  case  already  made. 
Conlan  v.  Mead,  172  111.  13,  49  N. 


E.  Rep.  720.  In  an  action  to  re- 
cover money  alleged  to  have  been 
loaned  to  a  partnership,  the  admis- 
sions of  a  deceased  person  that  he 
was  a  partner  in  the  firm  are  com- 
petent. Stanfield  v.  Knickerbocker 
Trust  Co.,  1  App.  Div.  (N.  Y.)  592. 
It  is  not  alone  enough  to  show  that 
the  others  had  previously  been 
members  with  the  declarant  of  an- 
other firm  which  meanwhile  was 
dissolved.  Kirby  v.  Hewitt,  26 
Barb.  607.  Compare  Johnson  v. 
Gallivan,  52  N.  H.  143;  Van  Eps 
v.  Dillaye,  6  Barb.  244. 

The  declarations  of  one  partner 
in  the  absence  of  the  other,  to  the 
effect  that  the  other  is  his  partner, 
do  not  charge  the  other.  Pretz- 
felder  v.  Strobel,  17  N.  Y.  Misc. 
152,  39  N.  Y.  Supp.  333. 

The  declarations  or  admissions 
of  one  partner  that  another  is  his 
partner  are  not  sufficient  to  charge 
the  latter  as  such  partner,  but  are 
competent  evidence  as  against  the 
one  making  the  admissions  as  to 
the  existence  of  a  copartnership 
between  them.  Boosalis  v.  Stev- 
enson, 62  Minn.  193,  64  N.  W. 
Rep.  380. 

The  admissions  of  one  of  a  num- 
ber of  persons  sought  to  be  charged 
as  partners  cannot  be  used  against 
the  others.  Lyon  v.  Fitch,  61  X. 
Y.  Sup.  Ct.  74,  18  N.  Y.  Supp. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        583 


to   make   the   representation,15   or  was   aware   of  it  and 
silent.16 


867;  Drennen  v.  House,  41  Pa.  St. 
30;  Currier  v.  Silloway,  1  Allen, 
19. 

Nothing  short  of  separate  ad- 
missions of  each  is  competent  to 
establish  a  partnership  between 
them.  Lyon  v.  Fitch,  61  N.  Y. 
Super.  Ct.  74,  18  N.  Y.  Supp.  867; 
Field  v.  Tenney,  47  N.  H.  513; 
Bryer  r.  Weston,  16  Me.  261; 
Robins  v.  Warde,  111  Mass. 
244. 

Neither  the  admissions  nor  dec- 
larations of  an  alleged  partner  are 
competent  evidence  on  the  ques- 
tion of  the  existence  of  the  co- 
partnership, but  after  prima  facie 
evidence  of  the  existence  of  the  co- 
partnership has  first  been  adduced 
such  admissions  and  declarations 
in  the  course  of  the  copartnership 
business  are  admissible  and  bind- 
ing on  the  copartners.  Franklin 
v.  Hoadley,  115  N.  Y.  App.  Div. 
538,  101  N.  Y.  Supp.  374,  126  N. 
Y.  App.  Div.  687,  111  N.  Y.  Supp. 
300. 

In  Franklin  v.  Hoadley,  126  N. 
Y.  App.  Div.  687,  111  N.  Y.  Supp. 
300,  MCLAUGHLIN,  J.,  in  a  concur- 
ring opinion,  says: 

"Where  the  existence  of  a  part- 
nership is  in  issue,  the  declaration 
of  one  party  that  another  is  nis 
partner  is  not  competent  to  estab- 
lish the  partnership  nor  do  such 
declarations  for  that  purpose  be- 
come admissible  after  prima  facie 
evidence  of  the  existence  of  the 
partnership  has  been  given.  The 


existence  of  the  partnership  can- 
not be  strengthened,  fortified  or 
bolstered  in  this  way.  All  that  is 
meant  by  the  authorities  and  text 
books  in  saying  that  such  declara- 
tions become  admissible  when 
prima  facie  evidence  has  been  given 
of  the  partnership  is  that  they  may 
be  received  for  the  purpose  of 
binding  the  partnership,  assum- 
ing, of  course,  its  existence  can  be 
found  solely  from  the  other  evi- 
dence. And  whenever  such  issue 
is  presented  at  a  trial  before  a  jury, 
then  specific  instructions  should 
be  given  to  this  effect." 

15  Paragraph  11. 

Where  the  defendants  were  sued 
as  partners,  it  was  held  that  the 
fact  of  their  partnership  could  not 
be  proved  by  the  acts  or  declara- 
tions of  an  alleged  partner  until  a 
prima  fade  case  was  made  out  that 
a  partnership  existed  and  then  the 
declarations  of  the  alleged  partner 
would  be  admissible  only  as  cor- 
robative  evidence.  Willoughby  v. 
Hildreth,  182  Mo.  App.  80,  167 
S.  W.  Rep.  639. 

16  Bancroft  v.  Haworth,  29  Iowa, 
462;  and  see  Campbell  v.  Hastings, 
29  Ark.   512.     Strictly  speaking, 
when  there  is  prima  facie  proof  of 
partnership  as  against  the  others, 
the    declaration    does    not    really 
corroborate  it,  as  against  the  oth- 
ers; but  it  ceases  to  be  error  to  re- 
ceive   it    as    against    them.      See 
Gardner    v.     Northwestern     Mfg. 
Co.,  52  111.  367. 


584        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


15.  Hearsay.  ' 

Neither  general  reputation,17  common  rumor,18  nor  the 
opinion  or  belief  19  of  a  witness  founded  on  such  hearsay,  is 
competent  evidence  of  partnership.  The  question  turns  on 
the  assent  of  the  one  to  be  charged.20  Hence  a  business  di- 
rectory,21 or  the  reports  of  a  commercial  agency,22  are  not 
admissible,  unless  knowledge  of  the  statement,  or  means  of 
knowing  it,  is  brought  home  to  the  party  charged. 


"Bowen  v.  Rutherford,  60  111. 
41,  s.  c.,  14  Am.  Rep.  25;  Brown  v. 
Crandall,  11  Conn.  93.  Such  evi- 
dence, if  competent  at  all,  is  so 
only  for  two  purposes:  (1)  In  cor- 
roboration  of  previous  evidence. 
(2)  To  show  knowledge  on  the  part 
of  plaintiff.  Not  as  direct  and 
principal  evidence.  Turner  v.  Mc- 
Ilhaney,  8  Cal.  575.  Even  when 
admitted  without  objection,  it  is 
not  alone  enough  to  sustain  a  find- 
ing that  partnership  existed.  But 
if  admitted  without  objection  it 
may  be  considered  in  connection 
with  other  evidence  of  partnership. 
Halliday  v.  McDougall,  22  Wend. 
264.  It  may  be  competent,  where 
the  partnership  is  not  directly  in 
issue,  but  only  incidentally  in  ques- 
tion; as,  for  instance,  when  relied 
on  as  an  excuse  for  not  giving  no- 
tice. Gowan  v.  Jackson,  20  Johns. 
176. 

It  is  not  competent  to  prove  a 
partnership  by  general  reputation, 
common  rumor,  or  the  opinion  or 
belief  of  a  witness  founded  on  such 
hearsay  testimony.  (Citing  text.) 
White  v.  Whaley  (Tex.),  1  White 
&  W.  Civ.  Cas.  Ct.  App.,  §  100. 

The  existence  of  a  partnership 
cannot  be  proved  by  general  rep- 
utation or  common  rumor.  Tanner, 


etc.,  Engine  Co.  v.  Hall,  86  Ala. 
305,  5  So.  Rep.  584. 

Common  reputation,  being  noth- 
ing more  than  rumor,  cannot  be 
allowed  as  competent  evidence  to 
establish  the  existence  of  a  co- 
partnership between  individuals. 
Campbell  v.  Hastings,  29  Ark.  512. 

18Tumlin  v.  Goldsmith,  40  Ga. 
221. 

But  where  one  admitted  his 
previous  connection  as  a  member 
of  a  partnership,  general  rumor  in 
the  neighborhood  that  tne  firm 
continued  to  exist  as  formerly  was 
held  to  be  a  circumstance  which 
could  be  considered  in  showing 
that  he  permitted  himself  to  be 
held  out  as  a  partner.  Gum  v. 
Grasselli  Chemical  Co.,  72  So.  Rep. 
(Ala.)  413. 

19  Hicks  v.  Cram,  17  Vt.  449. 

It  is  not  competent  to  prove  a 
partnership  by  general  reputation, 
common  rumor,  or  the  opinion  or 
belief  of  a  witness  founded  on  such 
.hearsay  testimony.  Cleveland  v. 
Duggan  (Tex.),  2  Willson,  Civ. 
Cas.  Ct.  App.,  §  81. 

20  Bowen  v.  Rutherford  (above). 
»  Union  Bank  v.  Mott,  39  Barb. 

180. 

"Campbell  v.  Hastings,  29  Ark. 
512. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS       585 


16.  Ownership. 

The  joint  purchase  or  ownership  of  property,23  whether 
real 24  or  personal,25  is  not  alone  any  evidence  of  partner- 
ship; 26  though  coupled  with  participation  in  profits,27  or 
evidence  of  agency  for  each  other,28  it  may  be  equivalent. 

17.  Dormant  and  Secret  Partners. 

To  charge  a  dormant  partner  with  the  others,  the  knowl- 
edge or  ignorance  of  those  dealing  with  the  firm,  that  he 
was  such,  is  wholly  immaterial.  It  is  enough  to  prove  that 


23  For   the    distinction    between 
partnerships    and    other    associa- 
tions, see  Ebbinghousen  v.  Worth 
Club,  4  Abb.  New  Cas.  300,  308, 
note;  Raisbeck  v.  Oesterricher,  Id. 
347;  Story  on  Partn.,  ch.  xvi;  1 
Wood's  CoU.  9-48. 

24  Thompson  v.  Bowman,  6  Wall. 
316. 

Where  two  parties  jointly  entered 
into  an  agreement  to  purchase 
land  and  each  paid  money  on  ac- 
count of  the  purchase  price  there- 
for, it  was  held  that  upon  ac- 
quiring title  they  would  hold  the 
premises  as  tenants  in  common, 
rather  than  as  copartners.  Breen  v. 
Arnold,  157  Wis.  528,  147  N.  W. 
Rep.  997. 

25  Such  as   a   patent.     Boeklen 
v.  Hardenberg,  60  N.  Y.  8,  affi'g  37 
Super.  Ct.  (J.  &  S.)  110. 

A  community  of  interests  in 
money  or  property,  or  both,  used 
in  carrying  on  a  business,  does  not 
of  itself  constitute  a  partnership 
in  such  business.  There  must  be 
some  joint  adventure  and  agree- 
ment to  share  in  the  profits.  Will- 
amette Casket  Co.  v.  McGoldrick, 
10  Wash.  229,  38  Pac.  Rep.  1021. 


26  And  mere  declarations  of  one 
that  they  "bought  it  in  partner- 
ship," may  not  be  alone  enough, 
for  he  may  have  meant  merely  as 
tenants  in  common.     Gregory  v. 
Martin,  78  111.  38. 

Not  every  joint  venture  consti- 
tutes a  partnership  within  the 
meaning  of  the  law.  Thus  where 
parties  bought  land  jointly,  but  it 
did  not  appear  that  either  person 
could  sell  without  the  other's  con- 
sent, nor  that  there  was  a  firm 
name,  it  was  held  that  the  owner- 
ship was  a  circumstance  to  be  con- 
sidered but  it  was  not  conclusive 
» of  the  existence  of  the  relation. 
Mayes  v.  Palmer,  208  Fed.  Rep.  97, 
125  C.  C.  A.  325. 

27  Paragraph  18.   Compare  Davis 
v.  Morris,  36  N.  Y.  569,  affi'g  35 
Barb.  227;  Reynolds  v.  Cleveland, 

4  Cow.  282. 

Where  two  parties  share  in  a 
joint  adventure,  and  participate 
in  the  profits,  they  become  part- 
ners. Farr  v.  Morrill,  53  Hun,  31, 

5  N.  Y.  Supp.  720. 

28  Ebbinghousen  v.  Worth  Club, 
4  Abb.  N.   Cas.  300;   Phillips  v. 
Nash,  47  Ga.  218. 


586        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 

he  was  actually  a  partner,29  unless  the  contracting  party  had 
knowledge  of  the  relation,  and  dealt  solely  on  the  credit  and 
name  of  the  others.30  Generally,  fraud  in  the  purpose  of 
forming  the  firm,  is  not  relevant  in  support  of  the  existence 
of  partnership,31  but  to  charge  a  secret  or  dormant  partner, 
evidence  of  his  declarations,  even  to  third  persons,  that  the 
partnership  existed  and  was  concealed,32  is  competent;  and 
his  offers  to  third  persons  to  become  a  secret  partner  for 
the  purpose  of  concealing  his  property,  are  competent,  in 
corroboration  of  other  evidence.33 


18.  Community  of  Profits;  the  Common-law  Rule. 

At  common  law  (both  in  courts  of  law  and  of  equity)  it  is 
sufficient  to  establish  the  liability  of  an  alleged  partner,  to 
show  that  by  agreement 34  he  had  a  right 35  in  the  entire  net 
profits,36  which  entitled  him  to  a  definite  share,37  as  profits. 


29  Lea  v.  Guice,  13  Smedes  &  M. 
656,  669. 

Where  the  question  whether 
one  party  was  really  a  dormant  or 
secret  partner  of  another  is  in  issue, 
the  plaintiff  was  held  to  have  the 
burden  of  establishing  the  rela- 
tion. Bakmazian  v.  Tatosian,  161 
N.  Y.  Supp.  450. 

30  Bigelow  v.  Elliott,  1  Cliff.  28; 
Palmer  v.  Elliott,  Id.  63. 

If  a  dormant  partner  be  known 
as  a  member  of  the  firm  to  one  with 
whom  the  firm  has  dealings,  actual 
notice  of  dissolution  must  be  car- 
ried home  to  the  person  who  has 
thus  dealt  with  the  firm.  Park  v. 
Wooten,  35  Ala.  242. 

3 Thomas  v.  Moore,  71  Penn. 
St.  193. 

"Bennett  v.  Holmes,  32  Ind. 
108. 

33  Butts  v.  Tiffany,  21  Pick.  95. 

34  Even   where   the   partnership 


was  in  a  real  estate  transaction, 
the  agreement  need  not  be  in  writ- 
ing. Chester  v.  Dickenson,  54  N. 
Y.  1,  affi'g  52  Barb.  349. 

An  agreement  to  share  profits 
and  losses,  may  be  either  express 
or  implied.  Jones  v.  Purnell,  21 
Del.  444,  62  Atl.  Rep.  149. 

35  P.  on  Partn.  70.     The  right 
to  an  account  has  commonly  been 
regarded    as    a    decisive    circum- 
stance; but  this  is  doubtful.    See 
Bentley  v.  Harris,  10  R.  I.  434,  s. 
c.,  14  Am.  Rep.  695. 

36  Sharing  in  losses  is  not  essen- 
tial.     Manhattan    Brass    Co.    v. 
Sears,  45  N.  Y.  797. 

37  A  voluntary  promise  to  pay 
an  indefinite  share  is  not  even  com- 
petent   evidence    of    partnership. 
Pleasants  v.  Fant,  22  Wall.  116. 

To  create  a  partnership  inde- 
pendent of  express  agreement, 
there  must  be  an  interest  in  prof- 


587 


This  rule,  still  commonly  followed  in  our  courts,  though  not 
in  England,  is  regarded  as  a  conclusive  presumption,  in  the 
absence  of  evidence  showing  that  he  received  it  not  as  the 
profits  of  a  principal,  or  of  money,  but  in  some  other  char- 
acter not  involving  that  of  partner.38 


its  as  profits  and  not  as  a  mere 
means  of  payment  for  labor  per- 
formed. Griggs  v.  Kohl,  132  111. 
App.  484. 

When  a  party  is  only  interested 
in  the  profits  of  a  business  as  a 
means  of  compensation  for  services 
rendered,  or  for  money  advanced, 
he  is  not  a  partner.  Cassidy 
v.  Hall,  97  N.  Y.  159;  Richard- 
son v.  Hughitt,  76  N.  Y.  55,  32 
Am.  Rep.  267;  Meehan  v.  Valen- 
tine, 145  U.  S.  611,  12  S.  Ct.  972, 
36  L.  ed.  835;  Beecher  v.  Bush,  45 
Mich.  188,  7  N.  W.  Rep.  785,  40 
Am.  Rep.  465;  Smith  v.  Knight,  71 
111.  148,  22  Am.  Rep.  94;  Williams 
Soutter,  7  Iowa,  435;  Russell  v. 
Herrick,  127  N.  Y.  App.  Div.  503, 
111  N.  Y.  Supp.  974. 

An  agreement  which  appoints 
one  to  be  the  "exclusive  agent" 
to  sell  and  manage  a  tract  of  land, 
and  which  further  provides  that 
the  "agency"  shall  continue  a 
specified  time,  and  that  certain 
expenses  of  sale  are  to  be  borne  by 
the  agent  and  his  compensation  for 
his  services  is  to  be  determined  by 
the  net  profits,  rather  than  by  a 
commission  on  the  amounts  real- 
ized, contains  nothing  inconsistent 
with  the  existence  of  an  agency, 
and  will  not  be  construed  as  creat- 
ing a  partnership.  Title  Insurance, 
etc.,  Co.  v.  Grider,  152  Cal.  746, 
94  Pac.  Rep.  601. 


38Leggett  v.  Hyde,  58  N.  Y. 
272,  affi'g  1  Supra.  Ct.  (T.  &  C.) 
18,  and  cases  cited;  and  see  King 
v.  Sarria,  69  N.  Y.  35.  The  prin- 
ciple running  through  the  well- 
considered  cases  which  apply  this 
rule,  is  that  on  the  one  hand  disa- 
vowals of  the  partnership  relation 
in  an  agreement,  or  even  the  with- 
holding of  some  of  the  usual  powers 
of  partners,  cannot  negative  the 
obligation  to  creditors,  if  any  sub- 
stantial elements  of  the  partner- 
ship relation  exist  in  a  joint  adven- 
ture, for  the  sake  of  profit,  as  such, 
yet,  on  the  other  hand,  a  right  to 
draw  profits  by  way  of  compensa- 
tion does  not  alone  make  a  part- 
ner of  one  whose  real  relation  is 
that  of  agent,  servant,  factor,  land- 
lord, annuitant,  or  co-tenant  with- 
out agency,  and  the  like.  The  court 
look  at  the  real  relation  resulting 
from  the  engagements  of  the  par- 
ties, and  if  it  does  not  establish 
some  other  and  subordinate  tie, 
they  give  effect,  in  favor  of  cred- 
itors, to  the  doctrine  that  he  who 
has  a  right  in  the  profits  as  such 
must  bear  his  share  of  the  liabil- 
ities. And  this  is  applied  as  a  rule 
of  law.  It  is  not  enough  that  the 
parties  did  not  intend  a  partner- 
ship, nor  that  they  intended  there 
should  be  none.  They  must  have 
intended  and  constituted  a  dis- 
tinct and  different  relation  ex- 


588        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


eluding  that  of  partnership.  See 
Leggett  v.  Hyde  (above);  East- 
man v.  Clark,  53  N.  H.  276,  s.  c., 
16  Am.  Rep.  192;  Parker  v.  Can- 
field,  37  Conn.  250,  j3.  c.,  9  Am. 
Rep.  317;  Connolly  v.  Davidson,  15 
Minn.  519,  s.  c.,  2  Am.  Rep.  154; 
Owens  v.  Mackall,  33  Md.  382; 
notes  in  13  Moak's  Eng.  839. 

In  the  following  cases  partici- 
pation in  profits  has  been  held  not 
to  prove  partnership  within  the 
foregoing  rule  (2  Am.  L.  Rev.  1, 
23,  193): 

I.  When  the  participant  is  le- 
gally incapable  of  contracting  gen- 
erally.    (Id.  7;  but  see  1  Wood's 
Coll.  12.) 

II.  When  his  stipulations  were 
to  the  effect  that  he  should  not  be 
liable  to  creditors,  and  the  creditor, 
at  the  time  of  the  dealing,  knew  of 
such    stipulations.      (Alderson    v. 
Pope,  1  Campb.  404,  n.;  and  see 
Livingston  v.  Roosevelt,  4  Johns. 
251,  266.) 

III.  When  the  participation  is 
in  profits  derived  from  a  contract 
of  shipment  on  half  profits,  as  is 
generally  practiced  in  this  country. 
(Story   on   Partn.    72,    §§43,   44. 
Compare  Eldridge  v.  Troost,  3  Abb. 
Pr.  N.  S.  20,  s.  c.,  6  Robt.  518; 
Post  v.  Kimberly,  9  Johns.  470; 
Marsh  v.  N.  A.  Ins.  Co.,  3  Biss. 
351.) 

FV.  When  the  profits  are  taken 
in  lieu  of  rent  (Holmes  v.  Old  Col- 
ony R.  R.  Co.,  5  Gray,  58, 3  Kent's 
Com.  33,  34.  Compare  Cushman 
v.  Bailey,  1  Hill,  526;  Catskill 
Bank  r.  Gray,  14  Barb.  471);  or 
for  other  general  benefits  rendered 
a  firm.  (2  Am.  L.  R.  23.) 


V.  When   taken  by   seamen  in 
lieu  of  wages.     (Story  on  Partn. 
69,  §42.) 

VI.  When    taken    as    compen- 
sation for  labor  or  services,  per- 
formed, not  as  principal   (Dob  v. 
Halsey,  16  Johns.  34);  but  as  agent, 
servant,  factor,  broker,  &c.  (Bur- 
ckle  v.  Eckhart,  3  N.  Y.  132.) 

VII.  When  the  participants  are 
creditors,   and   participate   to   the 
extent  of  their  claims,  in  the  prof- 
its   of   a    partnership    carried   on 
for    their    benefit,    as    creditors. 
(Brundred  v.  Muzzy,  1  Dutch.  (N. 
J.)  268,  279;  and  see  Cox  v.  Hick- 
man,  8  Ho.  of  L.  268,  9  C.  B.  N. 
S.  47,  rev'g  3  C.  B.  N.  S.  523,  18 
C.  B.  617,  and  see  69  N.  Y.  35.) 

VIII.  When  the  participant  is 
an  annuitant,  and  does  not  take 
the  profits   as   profits,   but   relies 
upon  them  merely  as  a  fund  for 
paying  an  annuity  to  which  he  is 
entitled  from  the  firm.     (Story  on 
Partn.  115,  §§  66-70.) 

IX.  When  he  is  the  devisee  of  a 
deceased    partner,    and    receives 
the  profits  derived  from  left  funds 
by  the  will  of  a  deceased  partner 
in  the  firm;  and  he  does  not  go  into 
the  firm  for  the  purpose  of  person- 
ally representing  such  funds.    (Id., 
2  Am.  L.  R.  17;  Burwell  v.  Man- 
deville,  2  How.  U.  S.  560;  Pitkin 
v.  Pitkin,  7  Conn.  307.) 

Whether  one  who  has  an  interest 
in  the  separate  share  of  a  partner 
in  the  profits  of  the  firm, — that  is, 
a  sub-partner, — is  liable  to  credi- 
tors, with  the  partners,  is  disputed. 
(Neg.  1  Wood's  Coll.  44;  §  27,  affi'g 
Fitch  v.  Harrington,  13  Gray,  468.) 

"An  agreement  to  share  profits 


ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS       589 


19.  -The  English  Rule. 

The  English  rule,  adopted  also  in  some  American  States,39 
is  that  the  test  of  liability  is  not  merely  whether  there  was  a 
participation  of  profits,  but  whether  there  was  such  a  par- 
ticipation as  constituted  the  relation  of  principal  and  agent 
between  the  percipients  and  the  actors  hi  the  business; 40 
and  therefore  participation  hi  profits  is  not  conclusive  evi- 
dence of  partnership,  but,  at  best,  a  circumstance  to  be  con- 
sidered, with  others,  hi  determining  whether  the  relation  of 
the  parties  was  such  as  to  create  that  agency  between  them 
in  which  partnership  consists.  It  is  a  cogent  circumstance, 
but  the  inference  of  partnership  arising  from  it  is  suscepti- 
ble of  control  by  other  circumstances  of  the  case.41 

20.  Evidence  in  Respect  to  Date. 

To  charge  one  as  a  partner,  he  must  be  shown  to  have 
been  a  member  when  the  contract  sued  on  was  made,42  or 


is  an  essential  element  in  every 
partnership  and  the  absence  of  prof- 
it sharing  is  conclusive  that  a  part- 
nership does  not  exist."  Will- 
oughby  v.  Hildreth,  182  Mo.  App. 
80,  91,  167  Mo.  App.  639. 

39  See  Harvey  v.  Childs,  22  Am. 
Rep.  387,  s.  c.,  28  Ohio  St.  319,  and 
cases  cited. 

40  Cox  v.  Hickman,  8  H.  of  L. 
Cas.  268,  306. 

Though  some  courts  hold  that 
an  agreement  to  share  profits  and 
losses  is  conclusive  evidence  of 
partnership,  "the  true  rule  is  that 
such  agreement  is  merely  prima 
facie  evidence  of  partnership." 
Roberts  v.  Nunn,  169  S.  W.  Rep. 
(Tex.  Civ.  App.)  1086. 

41  Ex   parte   Tennant,    37    Law 
Times  N.  S.  285.    And  see  Holme 
v.  Hammond,  L.  R.  7  Exch.  218, 
s.  c.,  2  Moak's  Eng.  R.  125;  Mol- 


levo  v.  Court  of  Wards,  L.  R.  4  P. 
C.  419,  s.  c.,  4  Moak's  Eng.  121. 

"Sharing  equally  the  net  profits 
\  of  a  mercantile  business  is  prinia 
facie  evidence  of  a  partnership. 
But  it  does  not  conclusively  es- 
tablish the  partnership  relation, 
as  the  presumption  arising  from 
proof  of  such  fact  may  be  re- 
butted." Glove  v.  Dawson,  106 
Mo.  App.  107,  80  S.  W.  Rep.  55. 

«  Fuller  v.  Rowe,  57  N.  Y.  23, 
rev'g  59  Barb.  344.  Proof  of  a 
stipulation  that,  as  between  the 
partners,  the  partnership  shall  be 
deemed  to  have  commenced  at  a 
date  prior  to  its  actual  commence- 
ment, will  not  alone  charge  them 
in  favor  of  creditors.  2  Wood's 
Coll.  1113,  n.;  unless  sufficient  to 
show  assumption  of  intermediate 
liabilities.  Hengst's  App.,  24  Penn. 
St.  413. 


590        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 

the  tort  committed,43  unless  his  assumption  of  prior  liabil- 
ities is  shown.  But  a  partnership  shown  once  to  have  ex- 
isted, is  presumed  to  continue  until  the  contrary  is  shown.44 
Hence  evidence  of  its  existence  within  a  reasonable  time 
prior  to  the  date  of  the  transaction  in  suit,  is  compe- 
tent; 45  and  in  connection  with  such  evidence,  or  any 
evidence  tending  to  show  a  partnership  at  the  time  of  the 
transaction,  evidence  of  its  existence  within  a  reason- 
able period  afterward  is  admissible.46  The  date  in  the  ar- 
ticles is  not  sufficient  evidence  of  the  date  of  execution,47 
except  as  against  a  party  to  the  articles.  The  creditor  may 
prove  the  commencement  of  the  partnership  from  the  com- 
mencement of  the  agency  or  holding  out,  though  that  be 
before  the  commencement  of  the  contemplated  business  of 
the  concern,48  and  before  the  performance  of  conditions  prec- 
edent in  the  articles,49  or  even  before  the  date  or  execution 
of  the  articles. 

21.  Assumption  of  Debts  by  Incoming  Partner. 

In  the  absence  of  anything  to  indicate  that  an  incoming 
partner  assumed  liability  for  outstanding  debts,  the  pre- 
sumption of  law  is  that  he  did  not.50  But  an  agreement  on 

43  Chester  v.  Dickinson,  54   N.  that  time  arrives.    Hardin  v.  Rob- 

Y.  1,  affi'g  52  Barb.  349.  inson  (App.  Div.),  162  N.  Y.  Supp. 

"Walrod  v.  Ball,  9  Barb.  271;  531. 

Cooper  v.  Dedrick,  22  Barb.  516,  4S  Burnett   ».    Holmes,   32   Ind. 

s.  P.,  Wilkins  v.  Earle,  44  N.  Y.  108. 

172;  Fassin  v.  Hubbard,  55  Id.  465.  «  Fleshman  v.  Collier,  47  Geo. 

Where  a  partnership  is  not  lim-  253. 

ited  as  to  time  and  there  is  noth-  47  Philpot  v.  Gruninger,  14  Wall, 

ing  to  show  the  intention  of  the  570. 

parties  as  to  its  duration,  it  will  be  48  Aspinwall  v.  Williams,  1  Ohio, 

held  to  be  a  partnership  at  will.  84,  94. 

But  where  a  partnership  has  for  49  Burns  v.  Rowland,  40  Barb, 

its    object    the    completion    of    a  368. 

specified  result,  it  will  be  presumed  50  Story   on   Parttt.   273,   §  152, 

that  the  parties  intended  the  rela-  274,  §  153. 

tion  to  continue  until  the  object  In  order  to  make  an  incoming 

has  been  accomplished  and  until  partner  liable  on  a  note  executed 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        591 


his  part  to  do  so  may  be  proved,  either  by  his  express  con- 
tract, or  by  inference  from  its  terms,  or  from  the  treatment 
of  such  debts,  by  the  new  firm,  to  the  knowledge  of  the  in- 
coming partner,  as  the  debts  of  the  new  firm.51  If  the  new 
firm  takes  the  assets  and  continues  the  business  hi  the  same 
place,  slight  evidence  is  sufficient  to  warrant  the  evidence 
that  it  has  assumed  the  liabilities  of  the  old  firm.52 

22.  Variance  as  to  Number  of  Partners. 

At  common  law,  under  a  declaration  alleging  a  contract 
by  one  person,  if  he  interposed  no  plea  hi  abatement,  plain- 
tiff might  prove  a  contract  by  a  firm  of  which  defendant  was 
a  member; 53  and  under  the  new  procedure,  a  recovery 
against  one  or  several  may  be  had  under  the  same  circum- 
stances. So,  on  the  other  hand,  when  several  are  alleged 
to  be  partners,  and  the  evidence  shows  that  only  a  part  of 
them  constituted  the  firm,  plaintiff  may  recover  against 


by  the  firm  before  he  became  a 
member,  it  must  be  proved  that  in 
some  way  be  assumed  the  obliga- 
tion created  by  the  note.  San 
Luis  Obispo  First  National  Bk.  v. 
Simmons,  98  Cal.  287,  33  Pac.  Rep. 
197. 

61  Updike  v.  Doyle,  7  R.  I.  446, 
463. 

An  incoming  partner  who  is  not 
liable  on  any  express  contract,  but 
who  enjoys  the  benefits  of  a  part- 
ner in  the  firm  is  liable  upon  an 
implied  contract  to  pay  for  what 
he  has  had  as  a  member  of  the  firm 
upon  the  terms  upon  which  the 
firm  had  it.  Rogers  v.  Riessner, 
30  Fed.  Rep.  525. 

52  Shaw  v.  McGregory,  105  Mass. 
96;  Ex  p.  Peele,  6  Ves.  604. 

A  retiring  partner  is  not  released 
from  liability  to  firm  creditors  ex- 
cept by  agreement  with  such  cred- 


itors. Webb  v.  Butler,  192  Ala. 
287,  68  So.  Rep.  369,  Ann.  Gas. 
1916,  D.  815. 

If,  upon  the  dissolution  of  a 
partnership  by  the  retirement  of 
one  of  two  partners,  the  other 
continues  the  business  and  agrees 
to  assume  the  debts  of  the  firm, 
the  retiring  partner  becomes  a 
surety  for  his  former  partner. 
Grigg  v.  Empire  State  Chemical 
Co.,  17  Ga.  App.  385,  87  S.  E.  Rep. 
149. 

"Barry  v.  Foyles,  1  Pet.  311; 
Smith  v.  Cooke,  31  Md.  174.  As 
to  variance  in  the  case  of  limited 
partnership,  where  the  sign  re- 
quired by  the  statute  was  not  dis- 
played, see  the  statute  N.  Y.  Law, 
1862,  p.  880,  c.  476,  §  1,  am'd'g  1 
R.  S.  765,  §  13,  2  N.  Y.  L.  1866,  p. 
1424,  c.  661.  Now  contained  in 
Partnership  Law,  §  35. 


592        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


those  who  are  found  liable,  and  be  nonsuited  as  to  the 
others; 54  whether  the  others  were  served  or  not.55  So  he 
may  recover  against  one  only,  on  evidence  that  there  was 
no  firm,  but  that  such  one  was  solely  liable.56 

23.  Presumption  of  Partner's  Authority. 

Under  an  allegation  that  the  partners  did  an  act,  evi- 
dence that  one  of  them  did  it  on  their  behalf  is  admissible.57 
If  the  act  was  within  the  scope  of  their  business,  or  properly 
incidental  to  an  act  within  the  scope  of  their  business,58  and 
done  hi  the  firm  name,  and  not  requiring  a  sealj  the  existence 
of  the  partnership  is  sufficient  evidence  of  authority,59  and  in 
favor  of  one  who  gave  credit,  is  conclusive,  in  the  absence 
of  evidence  of  notice  of  actual  lack  of  authority.60  If  the 
act  be  not  of  such  character,  there  must  be  evidence,  either 
direct  or  circumstantial,61  tending  to  show  authority  or  rat- 
ification.62 Evidence  that  the  partner,  exercising  a  power 
not  implied  in  the  nature  of  the  partnership,  was  the  gen- 
eral manager,  is  not  enough.  If  the  authority  sufficiently 
appear,  either  presumptively  or  by  direct  evidence,  it  is  not 


84  Fielden  v.  Lahens,  2  Abb.  Ct. 
App.  Dec.  Ill,  s.  c.,  6  Abb.  Pr.  N. 
S.  341,  rev'g  9  Bosw.  436;  Snelling 
v.  Howard,  51  N.  Y.  373,  affi'g  7 
Robt.  400;  and  see  Chapter  VII, 
paragraph  1,  of  this  vol.,  n.  86. 
j  A  creditor  may  proceed  directly 
against  the  administrators  of  a  de- 
ceased partner,  making  the  surviv- 
ing partner  a  party.  He  need  not 
sue  the  firm,  nor  the  surviving 
partner  alone.  United  States  v. 
Hughes,  161  Fed.  Rep.  1021. 

65  Pruyn  v.  Black,  21  N.  Y.  300; 
McKensie  v.  Farrell,  4  Bosw.  192. 
Contra,  Smith  v.  Halett,  65  111.  495. 

"  Stimson  v.  Van  Pelt,  66  Barb. 
151;  Angel  v.  Cook,  2  Supm.  Ct. 
(T.  &  C.)  175,  177. 

57  See  King  v.  Fitch,  2  Abb.  Ct. 


App.  Dec.  508;  Walton  v.  Dodson, 
3  Carr.  &  P.  162. 

58  As,  for  instance,  directing  the 
levy  of  an  execution  when  collect- 
ing a  debt  due  the  firm.  Cham- 
bers v.  Clearwater,  1  Abb.  Ct.  App. 
Dec.  341,  affi'g  41  Barb.  200. 

69  Smith  v.  Collins,  115  Mass. 
388,  399. 

Where  a  note  is  produced  signed 
by  the  partnership  name  it  is  not 
necessary,  in  order  to  make  out 
the  plaintiff's  case,  to  prove  that 
the  note  was  made  in  the  business 
of  the  firm.  Paul  v.  Van  Da  Linda, 
58  Hun,  611,  12  N.  Y.  Supp.  638. 

60  Edwards  v.  Tracy,  62  Penn. 
374;  Hoskinson  v.  Elliot,  Id.  393. 

"  Butler  v.  Stocking,  8  N.  Y.  408. 

62  See  paragraphs  28  and  29. 


ACTIONS   BY,   AGAINST,    OR   BETWEEN   PARTNERS       593 

necessary  to  show  that  the  partnership  had  the  benefit  of 
the  consideration. 

24.  Evidence  as  to  the  Scope  of  the  Business,  etc. 

To  prove  the  scope  of  the  business  and  the  manner  of 
transacting  it,  for  the  purpose  of  establishing  the  authority 
of  a  partner  to  bind  the  others,  the  creditor  need  not  pro- 
duce or  call  for  the  articles,  unless  restrictions  hi  them  are 
shown  to  have  been  known  to  him.  Evidence  of  the  pre- 
vious dealings,  the  acts  of  the  partners,  and  the  length  of 
tune  such  a  course  of  business  has  continued,  etc.,63  and  of 
the  common  and  usual  dealings  of  persons  engaged  hi  the 
same  trade  or  business  at  the  same  locality,64  is  competent. 

25.  Evidence  of  Express  Authority. 

The  admission  or  declaration  of  one  partner  as  to  author- 
ity, or  the  scope  of  business  from  which  it  is  implied,  is  com- 
petent as  against  him,65  but  the  partnership  relation  does 
not  authorize  him  to  exaggerate  its  scope,  as  against  the 
others,  by  his  declarations,  and  therefore  such  declarations 
are  not  competent  for  this  purpose  as  against  the  others,66 
even  if  made  as  part  of  the  res  gestce  of  the  act  in  question,67 

83  Clayton  v.  Hardy,  27  Mo.  536.  been  recognized  and  acted  upon. 

Where  the  authority  of  the  agent  Pursley  v.  Ramsey,  31  Ga.  403. 

of  a  partnership  to  purchase  sup-  64  Smith   ».   Collins,    115  Mass, 

plies  for  the  firm  is  denied  by  one  388,  399.    The  usage  must  be  that 

of  the  partners  in  a  suit  against  of  the  particular  trade  or  business, 

the  firm  for  the  price,  it  is  proper  Story  on  Partn.  202,  §  113. 

to  permit  the  inquiry  as  to  the  65  Smith  v.   Collins,   115   Mass, 

scope    of    the    business    actually  388, 399. 

transacted  by  the  firm.    McDon-  «  1  Wood's  Coll.  736,  §  459. 

aid  v.  Fan-banks,  Morse  &  Co.,  161  One  partner  has  no  right,  by  his 

111.  124,  43  N.  E.  Rep.  783.  promise,    to    bind   his    copartners 

In  order  to  show  the  authority  without  their  assent,  to  pay  his 
of  a  partner  it  is  competent  to  show  own  private  debt  from  the  partner- 
that  by  the  firm's  general  course  ship  assets.  Low  v.  Arnstein,  73 
of  business,  the  authority  to  bind  111.  App.  215. 
in  like  cases,  as  by  the  use  of  a  "Elliott  v.  Dudley,  19  Barb, 
particular  partnership  name,  had  326. 


594        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 

unless  shown  to  have  been  authorized  or  permitted  by  such 
others,  or  to  have  been  so  open  or  continued  that  permis- 
sion may  be  inferred. 

26.  Question  to  Whom  Credit  was  Given. 

The  partnership  having  been  proved,  and  the  act  not  be- 
ing beyond  its  scope,  the  declaration  of  any  partner  made  at 
the  time  of  the  transaction,68  or  at  any  time  during  the  con- 
tinuance of  the  partnership  relation,69  is  competent  to  show 
that  the  act  was  done  on  behalf  of  the  partnership;  and  if 
the  credit  was  obtained  on  the  faith  of  such  declaration,  the 
falsity  of  the  representation  is  not  material.70  To  prove 
that  the  transaction  was  for  partnership  purposes,  it  is 
prima  fade  enough  to  show  that  it  was  in  the  firm  name,71 
except  where  the  name  used  by  the  firm  was  merely  that  of 
an  individual  partner.  Evidence  that  the  partner  acting  in 
the  matter,  signed  the  contract,  self  "&  Co.,"  or  self  "and 
partners,"  is  prima  facie  sufficient  proof  of  the  firm  name, 
and  throws  on  defendants  the  burden  of  showing  that  they 
had  adopted  a  different  name.72  If  they  had  not  adopted  a 
different  name,  such  a  signature  will  bind  the  firm,  though 
they  never  received  the  proceeds.73  If  the  partners  had  not, 
either  by  agreement  or  usage,  adopted  a  composite  name, 
the  fact  that  they  did  business  in  the  individual  name  of  one 

68  Oliphant  v.  Mathews,  16  Barb.          70  Stockwell    v.    Dillingham,    50 
608.  Me.  442;  U.  S.  Bank  v.  Binney,  5 

69  Smitha   v.    Cureton,    31    Ala.      Mas.  176, 184. 

653.   Contra,  1  Wood's  Coll.  645,  n.          When  a  contract  is  made  in  the 

3.  firm  name  it  will  prima  fade  bind 

If  the  existence  of  the  defendant  the  firm,  unless  it  is  ultra  the  busi- 

partnership  is  established  by  com-  ness    of    the    firm.      Stockwell    v. 

petent  evidence,  admissions  against  Dillingham,  50  Me.  442,  79  Am. 

interest  made  by  one  of  the  partners  Dec.  621. 
within  the  scope  of  the  business  of          71  Wood's  Coll.  678,  n.    . 
the  partnership  are  admissible  to          72  Drake  v.  Elwyn,  1  Cai.  184, 

show  liability  on  its  part.    Thomp-  s.  c.,  less  fully,  3  Johns  Cas.  594. 
son  v.  Mallory,  108  Ga.  797,  33          73  Aspinwall  v.  Williams,  1  Ohio, 

S.  E.  Rep.  986.  84;  Austin  v.  Williams,  2  Id.  61. 


ACTIONS   BY,   AGAINST,    OR   BETWEEN   PARTNERS       595 


partner,  may  be  shown  by  evidence  of  their  usage,74  espe- 
cially where  their  agreement  charged  him  with  the  sole  man- 
agement of  the  business,75  or  of  that  part  of  it  in  which  the 
transaction  was  had.76  But  even  though  their  adoption  of 
the  individual  name  be  shown,  one  seeking  to  charge  the 
copartners  on  a  transaction  in  that  name  must  give  further 
evidence  that  the  transaction  was  had  in  the  business  of  the 
partnership,  or  upon  its  credit;77  otherwise  it  will  be  pre- 
sumed to  have  been  an  individual  transaction.78  Evidence 
that  it  was  actually  on  their  credit,  is  alone  enough,79  and, 
on  the  other  hand,  evidence  that  it  was  actually  in  their 
business,  if  the  dealer  did  not  expressly  restrict  himself  to 
the  individual  credit,  is  alone  enough,  even  though  he  was 
ignorant  of  the  other  partners,  and  of  the  partnership  ob- 
ject.80 Where  a  partner  carries  on  the  firm  business  in  his 


74  Ontario  Bank  v.  Hennessy, 
48  N.  Y.  545.  In  such  case  even 
the  occasional  drawing  of  a  bill,  etc., 
by  one  member  in  his  own  name, 
for  partnership  purposes,  is  com- 
petent to  go  to  the  jury  as  evidence 
of  trading  under  that  name,  but 
does  not  alone  raise  a  presumption 
of  law.  Le  Roy  v.  Bayard,  2  Pet. 
200. 

"Id. 

76  See  Wright  v.  Ames,  4  Abb.  Ct. 
App.  Dec.  644. 

77  Story  on  Partn.  192,  §  106, 199, 
§106. 

Where  partners  give  a  note  in 
payment  for  land  and  sign  it  in 
their  individual  names  but  not  in 
the  firm  name,  and  the  purchase 
was  entered  into  as  a  partnership 
venture,  and  the  land  and  its  pro- 
ceeds were  carried  on  the  firm's 
books  as  partnership  assets,  the 
note  will  be  deemed  to  have  been 
given  for  a  partnership  indebted- 


ness.    Dreyfus  v.  Union  National 
Bk.,  164  111.  83,  45  N.  E.  Rep.  408. 

78  Oliphant  v.  Mathews,  16  Barb. 
608.     Where  a  partnership  busi- 
ness is  done  in  the  name  of  an  in- 
dividual member  of  the  firm,  the 
burden   is   upon   one,   seeking   to 
charge  the  copartnership  upon  a 
note  given  for  money  loaned,  exe- 
cuted in  the  name  of  such  individ- 
ual  member,    to    show    that    the 
money  was  borrowed  for  or  ap- 
propriated to  the  use  of  the  firm, 
or  at  least  that  the  name  was  in 
fact  used  to  denote  the  firm.    Ger- 
non  v.  Hoyt,  90  N.  Y.  631. 

79  Story  on  Partn.  253,  §  139. 

It  is  immaterial  in  whose  name 
certain  orders  were  drawn,  pro- 
vided the  goods  obtained  under 
them  were  an  advance  by  the  firm. 
Horton  v.  Miller,  84  Ala.  537,  4 
So.  Rep.  370. 

80  Story   on   Partn.   253,   §139. 
Especially  if  the  avails  were  ap- 


596        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 

sole  name,  and  also  carries  on  a  different  kind  of  business 
of  his  own,  in  the  same  name,  the  fact  that  the  dealer  knew 
the  transaction  was  in  aid  of  the  one  kind  of  business  or  the 
other,  will,  in  the  absence  of  other  evidence,  determine  the 
question; 81  and  neither  the  fact  that  he  was  ignorant  of  the 
partnership,  nor  that  the  consideration  was  never  actually 
applied  in  aid  of  its  business,  is  then  material.82  The  cred- 
itor's entry  in  his  own  book,  charging  exclusively  an  individ- 
ual member  83  or  the  firm,  is  not  conclusive  against  him  when 
he  seeks  to  hold  the  firm  or  the  individual  alone  liable,  but 
may  be  explained  by  evidence  of  his  intent. 

27.  Parol  Evidence  to  Charge  Firm  on  Individual  Signature. 

Where  a  written  contract  not  under  seal,  is  made,  not  in 
the  firm  name,  but  in  the  name  of  an  individual  partner, 
parol  evidence  is  competent  to  show  that  the  transaction 
was  in  reality  for  firm  account.84 

28.  — of  Sealed  Instrument. 

The  general  implied  power  of  a  partner  does  not  extend 
to  binding  the  firm  by  executory  instruments  under  seal; 85 

plied   to   the   firm   use.     Ontario  84  Per  COWEN,  J.,  Lawrence  v. 

Bank  v.  Hennessy  (above).    Com-  Taylor,    5    Hill,    113;    Brown    v. 

pare  Story  on  Partn.  250,  §  136.  Lawrence,  5  Conn.  399. 

81  Story  on  Partn.  253,  §  139.  8S  Schmertz  v.  Shreeve,  62  Penn. 

82  Id.;  5  Pet.  529.  St.  457,  s.  c.,  1  Am.  Rep.  439,  and 

83  Story   on   Partn.   260,   §144;  cases  cited,  SHARSWOOD,  J. 
Smith  v.  Cooke,  31  Md.  174.  One    partner    cannot    bind    his 

One  who  makes  a  contract  with  copartners  by  deed,  unless  he  has 

a  partner  without  knowing  that  the  express  authority  by  deed  for  that 

latter  is  acting  for  the  partnership  purpose.     Wharton  v.  Woodburn, 

may   hold   the   individual  or  the  20  N.  C.  647. 
firm  liable  on  the  contract.     The          "The  authority  of  one  partner 

burden  of  proof  is  upon  the  partner  to  bind  the  others  on  the  ground 

to  show  the  existence  of  the  firm  of  agency,  does  not  extend  to  the 

and  knowledge  of  it  on  the  part  of  conveyance  of  real  property,  and 

the  person  contracting  with  him.  deeds    conveying    such    property 

Shanley  v.  Merchant,  140  N.  Y.  must  be  executed  by  all  the  part- 

App.   Div.  797,  125  N.  Y.   Supp.  ners."    Robinson  v.  Daughtry,  171 

587.  N.  C.  200,  88  S.  E.  Rep.  252. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        597 


and  a  sealed  instrument 86  executed  in  the  name  of  a  firm  by 
one  of  its  members,  without  the  proper  authority,  where 
a  seal  is  necessary,  is  the  deed  of  such  member  only,  and  he 
alone  is  bound  by  it.87  If  the  seal  is  unnecessary  from  the 
nature  of  the  instrument,  the  act  will  bind  the  firm  as  a 
simple  contract,88  although  it  sets  forth  that  the  firm  have 
set  their  hands  and  seals,  and  is  signed  on  behalf  of  the 
firm,  by  one  member  with  his  seal.  The  seal  may  be  re- 
jected as  surplusage.  Hence  a  sealed  note  is  competent  in 
evidence  of  the  precedent  debt  acknowledged  thereby.89 
To  render  the  deed  of  the  firm,  executed  by  one  partner, 
valid  as  a  deed  by  the  firm,  it  is  enough  to  show  a  prior  au- 
thority or  a  subsequent  ratification  by  the  other  partners, 
either  in  writing  or  by  parol,  either  express  or  implied.90 


86  Other  than  a  release. 

87  Gibson  v.   Warden,    14   Wall. 
247. 

A  partner  has  no  implied  power 
to  bind  his  copartner  personally 
by  a  note  under  seal,  with  power 
of  attorney  to  confess  judgment 
and,  in  a  suit  on  such  a  note,  al- 
though given  for  a  loan  to  the 
partnership,  recovery  can  be  had 
only  against  the  partner  who  exe- 
cuted it.  Funk  v.  Young,  254  Pa. 
548,  99  Atl.  Rep.  76. 

88  As,  for  instance,  in  the  case  of  a 
chattel  mortgage.    Gibson  v.  War- 
den (above),  or  a  contract  of  sale 
of    goods    under   seal.      Schmertz 
».  Shreeve,  62  Penn.  St.  457.    This 
rule  cannot  avail  to  sustain  an  ac- 
tion on  a  formal  bond  executed  by 
a   partner,   without   authority   or 
ratification.     Russell  v.   Annable, 
109  Mass.  72,  s.  c.,  12  Am.  Rep. 
665.    As  to  a  lease,  compare  Mason 
v.  Breslin,  9  Abb.  Pr.  N.  S.  427; 
s.  c.,  40  How.  Pr.  436,  2  Sweeny, 
386. 


Where  a  partnership  contract 
would  be  good  without  a  seal,  the 
addition  of  a  seal  will  not  prevent 
its  inuring  as  a  simple  contract,  al- 
though the  partner  who  executed 
the  instrument  had  no  special  au- 
thority to  put  the  partnership 
name  to  such  paper.  Human  v. 
Cuniffe,  32  Mo.  316. 

If  a  seal  be  attached  by  a  part- 
ner, who  is  authorized  to  act,  to  a 
writing  upon  which  a  seal  is  not 
at  all  essential,  the  attaching  of 
one  does  not  bring  the  instrument 
within  the  reason  or  operation  of 
the  rule  with  respect  to  instru- 
ments under  seal.  Patten  v. 
Kavanagh,  11  Daly  (N.  Y.),  348. 

89Hoskinson  v.  Eliot,  62  Penn. 
St.  393. 

90  Story  on  Partn.  214,  §  122; 
Gibson  v.  Warden  (above).  In  an 
action  for  rent,  on  a  sealed  lease, 
one  of  the  lessees  who  entered  under 
the  lease  is  estopped  to  show  that 
his  copartner  was  not  authorized 
to  sign  his  name  to  it.  Holbrook 


598        ACTIONS   BY,   AGAINST,    OR   BETWEEN   PARTNERS 


Proof  that  the  firm  actually  received  the  consideration,  is 
enough.91 

A  deed  running  to  the  firm  name,  even  though  conveying 
land,  may  be  explained  by  parol  evidence  of  who  composed 
the  firm.92 

29.  Evidence  of  Ratification. 

To  make  an  act,  done  by  one  partner,  beyond  the  scope 
of  his  authority,  binding  on  the  others,  a  clear  ratification 
must  be  shown,  but  it  need  not  have  been  express;  it  may  be 
inferred  from  circumstances.93  The  circumstances  must  be 
such  that  knowledge,  and  action  thereon,  or  knowledge  and 
expressed  intent,  can  be  inferred.  Knowledge  of  the  act 
of  the  partner,  without  knowledge  of  the  facts  making  the 


v.  Chamberlin,  116  Mass.  155,  s.  c., 
17  Am.  Rep.  146. 

If  one  partner  sign  and  seal  an 
instrument  in  the  firm  name,  with 
the  assent  of  the  other,  the  latter 
is  as  much  bound  as  if  he  had  signed 
and  sealed  it  himself,  and  his  assent 
can  be  proved  by  any  of  the  usual 
modes  of  evidence.  Fichthorn  v. 
Boyer,  5  Watts,  159,  30  Am.  Dec. 
300;  Miller  v.  Royal  Flint  Glass 
Works,  172  Pa.  St.  70,  33  Atl. 
Rep.  350. 

"If  a  contract  under  seal,  exe- 
cuted by  one  partner  in  behalf 
of  the  firm,  be  ratified  by  the  other 
partner  by  conduct  or  by  parol, 
it  then  becomes  the  deed  of  the 
firm  as  fully  as  if  executed  under 
seal  by  both  partners."  National 
Citizens'  Bank  v.  McKinley,  129 
Minn.  481,  152  N.  W.  Rep. 
879. 

91  Daniel  v.  Toney,  2  Mete.  (Ky.) 
524. 

92  Lindsay  v.  Hoke,  21  Ala.  542, 
s.   P.,  Webb  v.   Weatherhead,   17 


How.  U.  S.  576,  paragraph  50 
(below) .  Contra,  Arthur  v.  Weston, 
22  Mo.  283. 

93 1  Wood's  Coll.  677. 

"Ratification  means  the  adop- 
tion by  a  person,  as  binding  upon 
himself,  of  an  act  done  in  such  re- 
lations that  he  may  claim  it  as 
done  for  his  benefit,  although  done 
under  such  circumstances  as  would 
not  bind  him  except  for  his  subse- 
quent assent.  The  acceptance  of 
the  results  of  the  act  with  an  intent 
to  ratify,  and  with  full  knowledge 
of  all  the  material  circumstances  is 
a  ratification."  Samstag  v.  Ot- 
tenheimer,  90  Conn.  475,  97  Atl. 
Rep.  865. 

Where  one  of  two  partners  en- 
ters into  a  contract  and  the  other 
partner  knowingly  participates  in 
the  use  of  funds  advanced  upon  the 
contract  and  does  not  question  the 
agreement  until  its  completion,  he 
thereby  ratifies  it.  McDougal  v. 
McDonald,  86  Wash.  334,  150 
Pac.  Rep.  628. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        599 


act  a  fraud  on  them,  is  not  enough; 94  and  silence  and  inaction 
under  full  knowledge  is  not  enough,95  unless  made  so  by  be- 
ing known  to  and  acted  on  by  the  other  party  as  a  reasonable 
indication  of  assent.  Failure  to  give  notice  of  dissent  within 
a  reasonable  tune  after  knowledge,  especially  if  coupled  with 
evidence  of  a  like  course  of  dealing  continued,  is  sufficient 
to  go  to  the  jury.96  Evidence  of  the  consideration  for  the 
act  is  relevant  to  the  question  of  implied  ratification; 97  and 
evidence  of  mere  expressions  of  assent  is  competent.98  Where 
acts  of  ratification  are  shown,  intent  that  they  should  have 
that  effect  is  not  material.99 

30.  Evidence  of  Deceit  or  Fraud. 

Evidence  of  fraud  or  deceit  committed  by  one  partner, 
in  a  transaction  in  the  course  of  the  partnership  business, 
is  competent  against  the  others,  and  cannot  be  rebutted  by 
proving  their  ignorance  or  innocence.1 


94  Hayes  v.  Baxter,  65  Barb.  181. 

In  the  absence  of  notice  or  knowl- 
edge on  the  part  of  the  other  part- 
ners, there  could  be  no  ratification 
of  the  act  of  one  partner  in  paying 
his  individual  debt  out  of  firm 
funds.  Baker-McGrew  Co.  v. 
Union  Seed,  etc.,  Co.,  125  Ark. 
146,  188  S.  W.  Rep.  571. 

96  Elliott  v.  Dudley,  19  Barb.  326. 

An  entry  of  appearance  by  one 
partner  in  a  suit  in  a  foreign  state 
is  not  binding  on  his  copartner. 
Weldon  v.  Fisher,  194  Mo.  App. 
573,  186  S.  W.  Rep.  1153. 

96  Id.;  Ferguson  v.  Shepherd,  1 
Sneed,  256. 

Notwithstanding  that  one  part- 
ner directed  the  plaintiff  not  to 
lend  money  to  his  firm,  he  was,  by 
his  failure  to  object,  deemed  to 
have  ratified  the  subsequent  act 
of  his  copartner,  who,  as  manager 


of  the  firm  with  full  power  to  con- 
tract debts  and  negotiate  loans, 
borrowed  money  of  the  plaintiff, 
which  he  used  in  paying  firm  obli- 
gations. Bank  of  Morton  v.  Eth- 
ridge  &  Hardee,  112  Miss.  208,  72 
So.  Rep.  902. 

And  where  the  plaintiff  sought 
to  replevy  mules  and  a  wagon  which 
his  partner  had  traded  to  the  de- 
fendant, it  was  held  that  he  had 
ratified  his  partner's  act  by  allow- 
ing the  delivery  of  the  said  chat- 
tels and  delaying  to  object  until 
after  the  defendant's  check  had 
been  received.  Williams  v.  Carson, 
191  S.  W.  Rep.  (Ark.)  401. 

97  Carter  v.  Pomeroy,  30  Ind.  438. 

98  Nichols  v.  English,  3  Brews. 
260. 

"Hazard  v.  Spears,  2  Abb.  Ct. 
App.  Dec.  353. 

1  Chester  v.  Dickinson,  54  N.  Y. 


600        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


31.  Evidence  of  Other  Torts. 

If  the  act  itself  was  one  within  the  scope  of  the  business, 
and  done  as  such,  then  it  is  not  material  that  the  other  part- 
ners were  ignorant  and  innocent;  -  nor  that  it  was  wilful; 3 
otherwise  if  the  act  was  wholly  foreign  to  the  business.  If 
the  act  was  presumptively  a  partnership  act,  because,  though 
not  in  the  line  of  the  trade,  it  was  incidental  to  the  exercise 
of  an  implied  power, — as  where  a  partner  in  collecting  a  debt 
due  the  firm  directs  an  officer  to  make  a  tortious  levy,— 
then  the  act  of  one  partner  is  presumptively  that  of  all; 4  and 


1,  affi'g  52  Barb.  349;  Wolf  v. 
Mills,  56  111.  360. 

All  the  partners  are  liable  for  a 
fraud  committed  by  one  of  them 
in  the  course  of  partnership  busi- 
ness. Kavanaugh  v.  Mclntyre, 
74  N.  Y.  Misc.  222, 133  N.  Y.  Supp. 
679. 

2  Stockwell  v.  United  States,  13 
Wall.  531. 

Partners  are  liable  for  torts  com- 
mitted by  them  or  either  of  them 
within  the  scope  of  the  business. 
Miller  v.  Phenix  Ins.  Co.,  109  111. 
App.  624.  ^ 

An  act  of  a  member  of  a  copart- 
nership within  the  scope  of  his 
authority  is  binding  upon  all  the 
partners  as  a  firm.  Where  the 
business  of  the  copartnership  is 
that  of  keeping  an  inn  and  one  of 
the  partners  accepts  money  de- 
posited with  him  by  a  guest,  and 
then  absconds,  the  other  partners 
are  liable.  Clark  v.  Ball,  34  Colo. 
223,  82  Pac.  Rep.  529,  114  Am.  St. 
Rep.  154,  2  L.  R.  A.  N.  S.  100. 

"Partners  are  individually  re- 
sponsible for  torts  by  a  firm  when 
acting  within  the  general  scope  of 
its  business,  whether  they  per- 


sonally participate  therein  or  not." 
Mclntyre  v.  Kavanaugh,  242  U.  S. 
138,  37  S.  Ct.  38. 

Partners  are  liable  jointly  and 
severally  for  the  wrong  of  one  part- 
ner committed  in  the  course  and 
within  the  scope  of  the  firm  busi- 
ness. Fennell  v.  Peterson,  225 
Mass.  598, 114  N.  E.  Rep.  744. 

3  Id.      Compare    Goldsmith    v. 
xPicard,  27  Ala.  142;  1  Wood's  Coll. 

724,  §  449. 

But  a  firm  or  a  partner  will  not 
be  liable  for  the  wilful  or  negli- 
gent tort  of  a  partner  acting  beyond 
the  scope  of  his  authority.  Van 
Dyk  v.  Mosterdt,  171  Iowa,  3,  153 
N.  W.  Rep.  206. 

4  Chambers  v.  Clearwater,  1  Abb. 
Ct.  App.  Dec.  341;  Harvey  v.  Mc- 
Adams,  32  Mich.  472. 

"Before  the  act  of  one  partner 
can  be  charged  against  the  firm 
as  constituting  negligence,  and 
create  liability  on  the  part  of  the 
firm  for  the  act,  it  must  appear 
that  the  act  was  done  within  the 
scope  of  his  agency  and  authority 
to  act  for  the  partnership.  The 
negligence  must  have  been  com- 
mitted within  the  scope  of  the  part- 


ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS       601 


evidence  that  they,  with  knowledge  of  the  facts,  received  the 
benefits  of  it,  is  conclusive  against  them.5 

32.  Admissions  and  Declarations  of  Partners. 

After  evidence  of  partnership,  and  of  its  scope  as  including 
the  affairs  in  question,  has  been  given,  an  admission  or  dec- 
laration made  by  one  partner,6  during  the  continuance  of 
the  partnership  relation,7  and  concerning  the  partnership 
affairs  8  during  the  relation,9  is  competent  against  all,  and 


nership  or  in  the  furtherance,  or 
attempt  to  further,  the  interests 
of  the  partnership.  His  act  must 
be  the  act  of  the  partnership  to  be 
binding  upon  it."  Van  Dyk  v. 
Mosterdt,  171  Iowa,  3,  153  N.  W. 
Rep.  206. 

5  Murray  v.  Binninger,  3  Abb.  Ct. 
App.  Dec.  336. 

6  Any   general    partner,    though 
dormant     or    silent.      Kaskaskia 
Bridge  Co.   v.   Shannon,    1   Gihn. 
(111.)  15,  25;  1  Greenl.  Ev.  13th  ed. 
218.      And    though    he    was    not 
served  with  process,  and  has  been 
therefore    dismissed.       (Kady    v. 
Kyle,  47  Mo.  346);  or  was  never 
joined.    Rose.  N.  P.  75.    Evidence 
which   shows   that   the   declarant 
was  either  the  partner  or  the  agent 
may  be  enough  to  render  his  dec- 
larations competent,  though  it  be 
uncertain  which  he  was.    Chamber- 
lain v.  Fobes,  3  Supm.  Ct.  (T.  &  C.) 
277. 

Before  one  alleged  partner  can 
be  charged  with  the  admissions  or 
declarations  of  another,  not  made 
in  Ms  presence,  the  partnership 
must  be  proved  by  other  evidence. 
But  where  there  is  prima  fade 


proof  of  the  partnership,  the  dec- 
larations and  admissions  of  one, 
made  in  the  conduct  of  the  alleged 
partnership  business,  are  proper 
as  evidence  tending  to  confirm  the 
fact  and  define  the  scope  of  the 
partnership.  Conner  v.  Ray,  195 
Ala.  170,  70  So.  Rep.  130. 

7  See  next  paragraph.    Am.  Iron 
Mountain  Co.  v.  Evans,  27  Mo.  552. 

8  A  partner's  declarations  or  ad- 
missions do  not  bind  his  associates 
in  concerns  and  transactions  foreign 
to  the  partnership,  and  he  cannot, 
by  such  declarations  or  admissions, 
bring  a  transaction  within  the  scope 
of  the  partnership  business,  when 
in  fact  it  had  no  connection  there- 
with.   Slipp  -o.  Hartley,  50  Minn. 
118,  36  Am.  St.  Rep.  629,  52  N.  W. 
Rep.    386.     Where    one   member 
of  a  firm  has  a  transaction  which  is 
neither  apparently  nor  in  reality 
within  the  scope  of  the  partnership 
business,  the  firm  is  not  bound  by 
his  declarations  or  his  acts  in  the 
transaction,  and  such  declarations 
are  not  evidence  against  the  firm 
or  the  other  partner.     In  such  a 
case  the  third  person  has  notice 
that  the  transaction  is  outside  of 


9 1  Greenl.  Ev.  217,  n. 


602        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 

has  the  same  effect  as  if  made  by  all.10  If  the  admission  re- 
lates to  the  partnership  affairs,  it  is  not  necessarily  incom- 
petent because  expressed  rather  as  an  individual  than  as  a 
firm  declaration.11  The  competency  of  the  declaration  is 
not  affected  by  the  fact  that  it  was  made  to  a  stranger.12 

If  the  admission,  being  made  with  apparent  authority, 
is  contractual  it  is  conclusive  in  favor  of  a  person  who  acted 
on  it  in  good  faith.  Otherwise  it  can  be  rebutted  by  proof 
of  falsity. 

The  sufficiency  of  the  proof  of  partnership,  adduced  as  a 
foundation  for  proving,  against  one  partner,  and  admission 
made  by  the  other,  is  a  preliminary  question  for  the  court.13 
But  the  court  may,  in  its  discretion,  allow  the  admission  to 
be  proved  first. 

An  entry  in  the  firm  books  during  the  existence  of  the 
firm  and  relating  to  its  affairs  is  competent  evidence  against 
all  the  partners,  even  though  the  books  were  kept  exclusively 
by  one  member  or  by  an  agent,  and  the  partner  sought  to 
be  charged  by  the  entry  was  not  in  fact  privy  to  it.14 

the  partnership  business,  and  he  has  been  otherwise  shown.    Conlan 

cannot  rely  upon  the  partnership  v.  Mead,  172  111.  13,  49  N.  E.  Rep. 

credit.    Union  Nat.  Bank  of  Rah-  720. 

way,  N.  J.,  v.  Underbill,  102  N.  Y.  »  Toby  v.  Brigham,  9  Humph. 

336,  7  N.  E.  Rep.  293;  Hahn  v.  750.      But    compare    Rogers    v. 

St.  Clair  Savings,  etc.,  Co.,  50  111.  Batchelor,  12  Pet.  221,  232,  where 

456.    The  rule  is  the  same  in  an  it  was  held  that  a  letter  written 

action  of  tort.    Fail  v.  McArthur,  by  a  partner  in  his  own  name,  not 

31  Ala.  27.  in  that  of  the  firm,  and  relating 

10  Pollock's  Dig.  L.  of  P.  45,  art.  partly  to  his  private  affairs,  is  not 

21;  Faler  v.  Jordan,  44  Miss.  283.  presumably  within  the  knowledge 

The  general  principle  is  more  fully  of   his    copartners,    and   therefore 

stated  in  chapter  VII,  paragraph  statements  in  it  referring  to  firm 

2,  of  this  vol.    Where  one  of  two  affairs  cannot  bind  them, 

or  more  persons  sued  as  partners  12  Grant  v.  Jackson,  Peake's  Cas. 

denies  the  partnership  by  proper  203. 

plea,  the  admissions  or  statements  13  Harris  v.  Wilson,  7  Wend.  57; 

of  his  alleged  copartners,  made  in  McCutchin    v.   Bankston,    2    Ga. 

his  absence,  with  reference  to  the  241.       Compare     paragraph     10, 

partnership,    are    not    admissible  chapter  VII,  of  this  vol. 

against  him  unless  the  partnership  "  Allen  v.  Coit,  6  Hill,  318;  Wai- 


ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS       603 

33.  Acts,  Admissions,  etc.,  after  Dissolution. 

The  collection  of  debts  and  the  disposal  of  assets,  by  either 
general  partner,  though  done  after  dissolution,  are  presump- 
tively valid  as  against  the  others,  hi  favor  of  third  persons; 15 
and  this  presumption  cannot  be  rebutted  by  merely  showing 
that  the  others  forbade  the  act,16  or  that  the  debts  had  been 
paid.17  It  may,  however,  be  rebutted  by  showing  that,  to 
the  knowledge  of  the  party  dealing,  the  partners  had  con- 
ferred the  special  power  of  liquidation  upon  another  of  their 
number.18 

In  other  respects  than  as  to  the  collection  of  debts  and  the 
disposal  of  assets,  the  agency  of  partners  for  each  other  ter- 
minates with  dissolution; 19  and  hence  no  executory  con- 
tract or  promise  made  or  delivered  20  by  one  after  dissolu- 
tion binds  the  others,  unless  there  is  evidence  from  which 
special  authority  21  or  ratification  may  be  inferred. 

It  is  the  better  opinion  that  the  same  principle  applies  to 
admissions  and  declarations;  and  that  no  such  concession 
made  by  a  partner,  after  dissolution,  even  if  he  were  au- 
thorized by  the  other  members  of  the  dissolved  firm  to  ad- 
just its  business,22  is  competent  evidence  against  a  copartner, 
although  relating  to  a  contract  which  arose  during  the  part- 
den  v.  Sherburne,  15  Johns.  409.  19  Thompson  v.  Bowman,  6  Wall. 
Entries  in  the  firm  books  of  a  316.  Unless  the  dissolution  was 
special  partnership  are  competent  unknown,  etc.  See  paragraphs 
against  special  partners  and  in  40-42. 

favor  of  third  persons  as  being  Tor  legal  purposes  negotiable 
in  the  nature  of  admissions  of  the  paper  is  deemed  to  have  been  signed 
facts  therein  stated.  First  Nat.  at  the  time  the  partner  delivers  it 
Bank  of  Jersey  City  v.  Huber,  75  to  the  third  person.  Gale  v. 
Hun,  80;  Kohler  v.  Lindenmeyr,  Miller,  54  N.  Y.  538. 
129  N.  Y.  498;  Hotopp  v.  Huber,  2l  Graves  v.  Merry,  6  Cow.  701. 
16  App.  Div.  327,  330.  22  Hackley  v.  Patrick,  3  Johns. 

"Robbins  v.  Fuller,  24  N.  Y.  536.  Contra,  so  far  as  to  admit 
570.  evidence  of  his  liquidating  the 

16  Gillilan  v.  Sun  Mut.  Ins.  Co.,      amount  of  a  claim,  the  existence 
41  N.  Y.  376.  of  which  was  proved  by  other  evi- 

17  Robbins  v.  Fuller,  24  N.  Y.  570.      dence.     Ide  v.  Ingraham,  5  Gray, 

18  Robbins  v.  Fuller  (above).  106,  s.  P.,  Feigley  v.  Whitaker,  22 


604        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 


nersliip.23  In  England,24  and  in  some  of  our  States,25  the 
contrary  rule  is  followed.  Upon  either  view,  however,  the 
admission  is  competent  against  the  one  who  made  it.26 

34.  Notice,  Tender  and  Demand. 

When  it  is  necessary  to  prove  that  a  firm  had  notice  from 
a  third  person  in  a  matter  within  the  scope  of  the  partner- 
ship business,  notice  to  or  knowledge  on  the  part  of  any  act- 
ing member  is  prima  facie  sufficient; 27  and  if  two  firms  have 


Ohio  St.  606,  s.  c.,  10  Am.  Rep. 
778. 

23  Baker  v.  Stackpoole,  9  Cow. 
420;  Thompson  v.  Bowman 
(above);  Miller  v.  Neimerick,  19 
111.  172;  Hamilton  v.  Summers,  12 
B.  Monr.  (Ky.)  11;  Flowers  v. 
Helm,  29  Mo.  324.  There  is  no 
distinction,  under  this  rule,  be- 
tween the  admission  of  an  account 
and  the  admission  of  a  fact.  Baker 
v.  Stackpoole  (above) ;  nor  between 
the  power  to  acknowledge  a  debt 
barred  by  the  statute,  and  the  power 
to  make  a  new  contract.  Van 
Keuren  v.  Parmelee,  2  N.  Y.  523; 
and  see  Winchell  v.  Hicks,  18  N. 
Y.  558.  The  death  of  the  declarant 
held  not  to  alter  the  case.  Hamilton 
0.  Summers,  12  B.  Monr.  (Ky.)  11. 
"The  declarations  of  one  partner 
after  the  dissolution  of  a  firm,  not 
made  in  the  business  of  winding  up, 
and  not  connected  with  any  trans- 
action or  dealing  connected  with 
the  dissolution  of  the  partnership, 
are  inadmissible  against  his  co- 
partner. He  may  bind  himself 
by  his  admissions,  but  as  to  his 
former  partners,  his  agency,  except 
for  special  purposes,  is  terminated 
by  the  dissolution,  and  his  admis- 


sions are  like  those  of  a  stranger, 
and  they  are  not  bound  by  them. 
Nichols  v.  White,  85  N.  Y.  531, 536. 
See  also  National  Bank  of  Com- 
merce v.  Meader,  40  Minn.  325,  41 
N.  W.  Rep.  1043."  First  Nat. 
Bank  of  Shakapee  v.  Strait,  65 
Minn.  162,  165,  67  N.  W.  Rep. 
987;  Walden  v.  Sherburne,  15 
Johns.  409;  McPherson  v.  Rath- 
bone,  7  Wend.  217;  Hogg  v.  Orgill, 
34  Penn.  344,  2  Greenleaf  on  Ev., 
§484. 

24  Both  at  common  law  (Whit- 
comb  v.  Whiting,  Doug.  652,  s.  c., 
1  Sm.  L.  Cas.  703),  and  in  equity. 
Pritchard  v.  Draper,  1  Russ.  &  M. 
191. 

25  Merritt  v.  Day,  9  Vroom,  32, 
s.  c.,  20  Am.  Rep.  362,  Beardsley  v. 
Hall,  36  Conn.  270,  s.  c.,4  Am.  Rep. 
74,  and  cases  cited;  1  Greenl.  Ev. 
by  Redfield,   133,  n.     As  to  the 
principle  involved  in  this  contro- 
versy,  see   note   to  paragraph  6, 
chapter  VII,  of  this  vol. 

MHanna  v.  McKibben,  10  Ind. 
547. 

»  1  Wood's  Coll.  672,  715;  Wil- 
liams v.  Roberts,  6  Cold.  (Tenn.) 
493.  That  knowledge  of  a  trustee 
is  sufficient  to  charge  with  notice 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        605 

a  common  partner,  notice  which  is  imputable  to  one  firm 
will  sustain  a  finding  of  notice  to  the  other.  Upon  the  same 
principle  a  demand  on  or  by  one  member,  on  behalf  of  the 
firm,  is  a  demand  on  or  by  the  firm; 28  and  so  of  a  tender;  a 
and  an  allegation  referring  to  all  the  defendants  admits  the 
evidence  as  to  the  one.30 

Dissolution  does  not  change  the  rights  and  obligations 
under  existing  contracts;  so  that,  notwithstanding  dissolu- 
tion, notice  to  or  demand  on  one  partner  is  sufficient  against 
the  firm.31 

35.  Defendant's  Evidence  to  Disprove  Partnership. 

It  is  rarely  enough  to  prove  that  defendants  were  not 
actually  partners  as  between  themselves;  but  this  fact  is 
relevant,  and  is  always  competent  in  defendant's  favor, 
unless  plaintiff  has  given  evidence  sufficient  to  entitle  him 
to  an  instruction  that,  as  matter  of  law,  the  defendant  is 
liable  as  if  a  partner,— as,  for  instance,  where  a  community 
of  profits,  or  a  representation  raising  an  estoppel,  is  proved. 
If  the  plaintiff's  evidence  on  the  point  is  circumstantial, 
or  only  sufficient  to  go  to  the  jury,  then  defendant  is  en- 
titled to  give  evidence,  even  by  his  own  testimony,32  ex- 

a  firm  of  which  he  is  a  member,  upon  one  of  them  only  is  not  suf- 

though  not  an  active  member,  see  ficient  to  cut  off  the  lien  of  the 

Weetjen  v.  St.  Paul  &  Pacific  R.  R.  other.    Liebert  v.  Reiss,  174  App. 

Co.,  4  Hun,  529.  Div.  308, 160  N.  Y.  Supp.  535. 

Notice  to  one  partner  in  refer-  M  1  Wood's  Coll.  665,  §  414. 

ence  to  any  matter  relating  to  a  30  See  Geissler  v.  Acosta,  9  N.  Y. 

transaction  within  the  scope  of  the  227. 

firm's  business,  is  notice  to  all  of  31  Hubbard    v.    Matthews,     54 

them.    Northwestern  Transfer  Co.  N.  Y.  43,  50,  and  cases  cited. 

v.  Investment  Co.,  81  Oregon,  75,  32  One  who  has  made  default  and 

158  Pac.  Rep.  281.  suffered  judgment  may  neverthe- 

28  Band  v.  Walker,  12  Barb.  298,  less  testify  in  favor  of  the  others 

s.  c.,  1  Code  R.  N.  S.  329.  that  they  were  not  partners  with 

Where,  in  an  action  for  the  fore-  him.    Danforth  v.  Carter,  4  Iowa, 

closure  of  a  mortgage,  two  part-  230,  236. 

ners  are  judgment  creditors  of  the  "Where    from    a    consideration 

mortgagor,  service  of  the  summons  of  all  the  facts  and  circumstances, 


600        ACTIONS   BY,    AGALNST,    OR   BETWEEN    PARTNERS 

plaining  his  intent  in  the  equivocal  acts  alleged,  and  cor- 
roborating his  denials  of  the  admissions  charged ; 33  or  even 
explaining  his  admissions.34  But  his  testimony  that  he 
was  not  a  partner  does  not  countervail  facts  from  which  the 
law  deduces  the  liability  of  a  partner.35 


36.  Proving  a  Limited  Partnership. 

To  secure  the  exemption  extended  by  law  to  the  special 
partner  in  a  limited  partnership  under  the  statute,  it  is 


it  appears  that  the  parties  intended, 
between  themselves,  that  there 
should  be  a  community  of  interest 
of  both  the  property  and  profits 
of  a  common  business  or  venture, 
the  law  treats  it  as  their  intention 
to  become  partners,  in  the  absence 
of  other  controlling  facts."  Bacon 
v.  Christian,  184  Ind.  517,  111  N.  E. 
Rep.  628. 

"Even  if  there  is  no  express  or 
definite  agreement,  either  in  writ- 
ing or  verbally,  there  still  may  be  a 
contract  of  partnership  created  by 
implication  or  raised  by  implica- 
tion of  law  from  the  acts  and  con- 
duct of  parties  with  each  other  in 
reference  to  property  and  business 
enterprises."  Foot  v.  Porter,  131 
Minn.  224,  154  N.  W.  Rep.  1078. 

The  burden  of  proof  is  upon  those 
asserting  partnership  to  show  it 
by  a  fair  preponderance  of  the 
evidence  Id. 

33  Tracey  ».  McManus,  57  N.  Y. 
257.  New  member  may  defend 
on  the  ground  of  fraud  inducing 
him  to  assume  the  debts.  Hinman 
v.  Bowen,  3  Hun,  192,  s.  c.,  5 
Supm.  Ct.  (T.  &  C.)  234.  To  show 
that  one  acting  in  the  business 
was  not  a  partner  but  a  clerk,  the 


contemporaneous  declarations  of 
admitted  partners,  made  before 
difficulty  arose,  to  inform  dealers 
and  the  public,  may  be  proved. 
Danforth  v.  Carter,  4  Iowa,  230, 
235.  Contra,  Tomkins  v.  Rey- 
nolds, 17  Ala.  109,  118. 

A  denial  of  an  allegation  of  part- 
nership by  one  of  the  defendant 
partners  inures  to  the  benefit  of 
all  the  defendants,  and  puts  the 
plaintiff  to  the  proof  of  the  part- 
nership. Hayden  Saddlery  Hard- 
ware Co.  v.  Ramsay,  14  Tex.  Civ. 
App.  185,  36  S.  W.  Rep.  595. 

"  Story  on  Partn.  263,  §  146. 
As,  for  instance,  where  they  were 
made  under  advice  of  counsel. 
Edgar  v.  McArn,  22  Ala.  796,  812. 
The  contrary  held  of  the  admission 
resulting  from  a  judgement  against 
them  as  copartners.  Cragin  ». 
Carleton,  21  Me.  493. 

"  Rebould  v.  Chalker,  27  Conn. 
114, 133. 

A  plea  by  one  sued  on  a  note  as  a 
member  of  a  partnership,  merely 
denying  that  he  made  or  author- 
ized the  making  of  the  note,  is  bad, 
as  not  being  responsive  to  the  issue. 
Hancock  v.  State  Exchange  Bank, 
70  Fla.  243,  70  So.  Rep.  211. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        607 

sufficient  to  show  a  substantial  compliance  with  the  stat- 
ute preliminaries  in  the  formation  of  the  partnership.36 
The  fact  that  the  partnership  was  a  foreign  limited  partner- 
ship may  be  proved,  with  the  foreign  law,  in  exoneration 
of  the  special  partner.37  Where  a  violation  of  the  statute  in 
the  formation  is  shown,  it  need  not  be  shown  to  have  been 
intentional.  Where,  however,  the  limited  partnership  is 
shown  to  have  been  once  regularly  formed,  evidence  that 
the  general  partners  departed  from  the  statute,  is  not  alone 
enough  to  charge  a  special  partner  who  was  not  cognizant 
of  the  facts.38 

All  persons  dealing  with  a  limited  partnership  are  charge- 
able with  notice  of  the  scope  of  the  partnership  business, 
as  specified  in  the  articles  of  copartnership,  if  the  articles 
are  duly  filed  and  published  pursuant  to  a  requirement  of 
law;  and  the  limited  partner  cannot  be  charged  as  a  general 
partner  by  evidence  of  departure  from  the  articles,  unknown 
to  him.39 

37.  Matter  in  Abatement. 

The  omission  to  join  a  copartner  as  a  defendant  is  not 
available,  unless  it  appears  by  the  pleadings;  and  an  answer 
alleging  a  defect  in  this  respect,  must  state  precisely  and 
truly  who  were  the  parties.  An  allegation  that  A.  and  B. 
were  partners  with  defendant  and  should  have  been  joined, 
is  not  sufficient  to  admit  proof  that  only  A.  was  a  partner.40 
It  is  not  enough  to  show  that  the  one  not  joined  was,  in  fact, 
a  partner  as  between  the  defendants,  nor  that  he  partici- 
pated in  an  advisory  manner  hi  regard  to  the  conduct  of  the 

;is  Van  Ingen  v.  Whitman,  62  *°  Wiegand  v.  Sichel,  4  Abb.  Ct. 

X.  Y  513.  App.  Dec.  592. 

"King  v.  Sarria,  69  N.  Y.  24,  A  suit  is  maintainable  against 
affi'g  7  Hun,  167,  and  see  para-  some  of  the  members  of  a  partner- 
graph  8.  ship  unless  they  plead  in  abate- 

38  Van  Ingen  v.  Whitman  (above) .  ment  the  nonjoinder  of  their  as- 

39  Taylor   v.    Rasch,    11    Bankr.  sociates,  setting  forth  the  names  of 
Reg.  91.  all  the  members.    Parker  v.  Heald, 

29  App.  D.  C.  35. 


(508        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 

business,  nor  even  that  his  name  was  on  their  cards,  if  it  is 
not  shown  that  the  fact  was  generally  known,  or  known  to 
plaintiffs,  and  if  the  name  and  the  apparent  mode  of  trans- 
acting business  indicated  that  others  alone  composed  the 
firm.41  In  such  a  case,  the  objection  is  not  sustained  with- 
out proof  that  plaintiffs  knew  he  was  a  partner,  at  the  time 
of  the  contract.42  The  fact  that  after  the  transaction  and 
before  suit  brought,  plaintiff  became  aware  that  the  omitted 
person  was  a  partner,  is  not  enough.43  On  such  a  plea,  the 
defendants  may  be  held  to  strict  proof,44  and  should  produce 
their  articles,  if  any.45  To  support  such  a  plea,  the  fact  that 
defendants  signed  a  joint  note,  is  not  alone  evidence  of  a 
partnership  between  them.46  Neither  the  declarations  of 
the  third  persons  nor  of  the  defendants  are  admissible  in 
defendants'  favor,47  unless  hi  some  way  brought  home  to 
plaintiff's  knowledge.  And  upon  the  same  principle,  a 
judgment  in  an  action  by  a  stranger  against  such  third  per- 
son holding  him  to  be  a  partner,  is  not  competent.48 

38.  Evidence  of  Known  Want  of  Authority. 

If  the  public  have  the  usual  means  of  knowledge  given 
them,  and  no  acts  have  been  done  or  suffered  by  the  partner- 
ship to  mislead  them,  the  presumption  of  law  is  that  those 
dealing  with  a  partner,  knew  the  extent  of  the  partnership.49 
Evidence  that  the  articles  contained  restrictions  which  were 

41  North  v.  Bloss,  30  N.  Y.  380.  47  Sweeting  v.  Turner,  10  Johns. 

42  N.  Y.  Dry  Dock  Co.  v.  Tread-  216;  Nudd  v.  Burrows,  91  U.  S. 
well,   19  Wend.  525,  s.  P.,   1845,  (1  Otto)  438.    Contra,  see  14  N.  H. 
Peck  v.  Cowing,  1  Den.  222.  145,  and  cases  cited. 

43  North  v.  Bloss  (above).  **  De  Graff  v.  Hovey,  16  Abb.  Pr. 
4*  See  paragraph  2.                             120.    In  contradiction  or  impeach- 

45  See    Bonnaffe    v.    Fenner,    6  raent   of   a   witness   who   testifies 
Smedes  &  M.  217;  Kayser  v.  Sichel,  that  he  was  a  partner,  his  schedules 
34  Barb.  84,  aff'd  without  passing  in  insolvency,  containing  no  men- 
on  this  point  in  4  Abb.  Ct.  App.  tion  of  his  interest,  were  held  ad- 
Cas.  592.  missible.     Brigham  v.   Clark,   100 

46  Hopkins  v.   Smith,   11  Johns.  Mass.  430. 

161.  49  3  Kent's  Com.  43. 


ACTIONS    BY,    AGAINST,    OR    BETWEEN    PARTNERS        (509 


known  to  the  party  dealing  with  a  partner  is  competent, 
although  the  transaction  was  within  the  general  scope  of  the 
business.50  If  the  answer  contains  an  admission  of  the  firm 
contract,  a  denial  of  consideration  does  not  avail  to  admit 
the  defense  of  want  of  authority  or  fraudulent  diversion.51 

39.  Transactions  in  the  Interest  of  One  Partner. 

Evidence  that  a  transaction  with  a  partner  was  in  a  matter 
not  within  the  scope  of  the  business,  raises  a  presumption 
of  law,  in  the  absence  of  countervailing  circumstances,  that 
the  dealing  was  on  his  private  account,  notwithstanding  the 
firm  name  was  used.52  But  if,  on  the  other  hand,  the  subject- 
matter  is  consistent  with  the  partnership  business,  the 
burden  is  on  the  firm  to  show  that  the  contract  was  out  of  the 
regular  course  of  their  dealing,53  unless  the  contract  was  in 


50  Dow  v.  Saward,  12  N.  H.  275; 
Chapman  v.  Devereux,  32  Vt.  619, 
623. 

51Harger  v.  Worrall,  69  N.  Y. 
370, 373. 

52  3  Kent's  Com.  43;  approved  in 
Story  on  Partn.  241,  §  133,  n. 

"When  one  partner  has  a  trans- 
action with  a  third  person  which  is 
neither  apparently  nor  really  within 
the  scope  of  the  partnership  busi- 
ness, the  partnership  is  not  bound 
by  his  declarations  or  acts  in  the 
transaction."  Samstag  v.  Otten- 
heimer,  90  Conn.  475,  97  Atl. 
Rep.  865. 

Where  one  partner  purchases 
merchandise  for  a  business,  not 
connected  with  the  partnership, 
he  does  not  bind  his  firm  by  such 
transaction.  Gimbel  Bros.  v.  Mar- 
tinson, 157  X.  Y.  Supp.  458. 

"Id. 

"A  member  of  a  trading  co- 
partnership has  implied  authority 


to  borrow  money  on  the  credit  of 
the  co-partnership;  and  if  he  so 
borrows  from  one  loaning  without 
notice  and  in  good  faith,  and  ap- 
propriates the  proceeds  to  his  own 
use,  the  co-partnership  is  liable 
upon  the  obligation."  St.  Paul 
First  Nat.  Bank  v.  Webster,  130 
Minn.  277,  153  N.  W.  Rep.  736. 

"In  a  business  partnership  it  is 
presumed  that  a  note  signed  by  a 
member  in  the  firm  name  was  made 
in  the  partnership  business.  This 
presumption  may  be  rebutted, 
however,  by  showing  that  the 
partnership  was  not  such  a  part- 
nership as  called  for  the  borrowing 
of  money,  or  it  may  be  rebutted 
by  showing  that  the  moneys  bor- 
rowed were  for  another  purpose 
than  that  of  the  partnership  to 
the  knowledge  of  the  bank  loaning 
the  same."  Williams  v.  Wupper- 
mann,  171  App.  Div.  592, 157  N.  Y. 
Supp.  645. 


610        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


writing,  and  in  the  individual  name  of  a  partner.  In  general, 
if  one  takes  from  a  partner  in  discharge  of  his  separate  debt, 
the  obligation  or  funds  of  the  firm,  it  is  not  necessary  for 
the  other  partners  to  bring  home  to  him  conscious  knowledge 
that  this  was  a  misapplication;  the  nature  of  the  transaction 
is  enough  to  charge  him  with  the  duty  of  inquiry.54  The 
burden  is  on  the  dealer  with  the  partner,  to  show  assent  of 
the  other  partner  or  circumstances  from  which  assent  may 
be  inferred; 55  knowledge  alone  is  not  necessarily  enough.56 

40.  Burden  of  Proving  Dissolution  and  Notice. 

One  who  defends  on  the  ground  of  dissolution,  has  the 
burden  of  proof  of  dissolution;  and  also  of  notice,  if  the  other 
party  had  knowledge  of  the  partnership; 57  except  that  if  the 
dissolution  was  caused  by  war,  death  or  bankruptcy,  there 
need  be  no  evidence  of  notice.58  If  the  retiring  partner  was 


"Story  on  Partn.  241,  §  133,  2 
Greenl.  Ev.  446,  §480;  Rogers  v. 
Batchelor,  12  Pet.  229;  compare 
Purdy  v.  Powers,  6  Barr.  492. 
A  mortgagee  of  property  standing 
in  the  name  of  one  partner,  has, 
from  the  joint  possession  of  it  by 
the  firm,  constructive  notice  of 
their  title  and  relative  interests. 
Cavander  v.  Bulteel,  L.  R.  9  Ch. 
App.  79,  s.  c.,  8  Moak's  Eng.  743. 

In  the  absence  of  fraud  or  con- 
duct constituting  an  estoppel,  a 
partner,  without  the  consent  of 
his  copartners,  cannot  apply  firm 
property  to  the  payment  of  his 
individual  indebtedness.  Bullock 
v.  Power-Heafey  Coal  Co.,  98 
Neb.  221,  152  N.  W.  Rep.  392. 

55  Dob  v.  Halsey,  16  Johns.  34. 

Where  two  persons  enter  into  a 
partnership  for  the  purchase  of 
lands  and  one  of  them  acting  for 
both  purchases  at  a  less  price 


than  he  has  represented  to  the 
other,  the  law  stamps  the  trans- 
action as  fraudulent,  and  will  not 
permit  the  purchasing  partner  to 
retain  the  fruits  of  his  misconduct. 
Chilton  v.  Groome,  168  N.  C.  639, 
84  S.  E.  Rep.  1038. 

5«Todd  v.  Lorah,  75  Penn.  St. 
155. 

57  See  Story  on  Partn.  286,  §  160; 
Wade  on  Notice,  234,  §  530;  Car- 
michael  v.  Green,  55  Geo.  116. 
Compare  Goddard  v.  Pratt,  16 
Pick.  412,  429. 

A  retiring  partner  is  liable  for 
subsequent  transactions  made  by 
his  former  partner  in  the  firm  name 
with  those  who  had  previous  deal- 
ings with  the  firm,  and  who  entered 
into  the  new  transaction  without 
notice  of  the  change  in  the  part- 
nership. Austin  v.  Holland,  69 
N.  Y.  571,  25  Am.  Rep.  246. 

58Griswold   v.    Waddington,    16 


ACTIONS    BY,    AGAINST,    OR   BETWEEN    PARTNERS        611 


a  dormant  partner,  unknown  to  plaintiff,  and  his  name  was 
never  used,  evidence  that  he  ceased  to  be  a  partner  before 
the  transaction  is  enough  without  evidence  of  notice.59  If 
he  was  known  as  a  partner  to  the  person  dealing  with  the 
firm,  some  evidence  of  notice  of  withdrawal  is  necessary.60 

41.  Mode  of  Proving  Dissolution. 

A  dissolution  of  partnership  or  withdrawal  of  a  partner, 
may  be  proved  by  parol  or  partly  by  parol.61 


Johns.  438,  affi'g  15  Id.  57;  Sea- 
man v.  Waddington,  16  Id.  510; 
Dickinson  v.  Dickinson,  25  Gratt. 
(Va.)  321.  Civil  war  does  not, 
ipso  facto,  absolve,  except  from  the 
time  of  unequivocal  public  notice 
of  the  illegality  of  intercourse. 
Matthews  v.  McStea,  91  U.  S. 
(1  Otto)  7,  affi'g  50  N.  Y.  166, 
3  Daly,  349. 

59  Kelley  v.  Hurlburt,  5  Cow.  534; 
Davis  v.  Allen,  3  N.  Y.  168;  Phil- 
lips v.  Nash,  47  Geo.  218. 

Where  persons  hold  themselves 
out  as  partners  they  are  liable  till 
notice  of  their  withdrawal  is  given. 
But  in  the  case  of  dormant  part- 
ners who  draw  out  before  the  liabil- 
ity is  incurred  by  the  firm,  no  no- 
tice of  withdrawal  need  be  given 
and  no  liability  attaches.  Gor- 
man v.  Davis,  etc.,  Co.,  118  N.  C. 
370,  24  S.  E.  Rep.  770. 

60  Park  ».  Wooten's  Ex'r,  35  Ala. 
242. 

61  Emerson  v.  Parsons,  46  N.  Y. 
560,  affi'g  2  Sweeny,  447. 

"Every  change  in  the  personnel 
of  a  partnership  works  a  dissolu- 
tion." Webb  «.  Butler,  192  Ala. 
287,  68  So.  Rep.  369,  Ann.  Cas. 
1916,  D.  815. 

A    partnership    may   be   termi- 


nated at  any  time  by  consent,  but 
the  consent  must  be  mutual. 
Hardin  v.  Robinson,  162  N.  Y. 
Supp.  531. 

Where  one  of  the  partners  de- 
mands an  accounting,  which  is 
refused,  such  refusal  is  in  itself 
ground  for  the  termination  of  the 
partnership  relation.  Frankfort 
Const.  Co.  v.  Meneely,  112  N.  E. 
Rep.  (Ind.  App.)  244.  , 

"Where  a  partnership  has  been 
proven  to  exist,  its  existence  will 
be  presumed  to  continue  until  a 
dissolution  is  proved."  Guin  v. 
Grasselli  Chemical  Co.  (Ala.),  72 
So.  Rep.  413. 

The  sale  of  one  partner's  inter- 
est works  a  dissolution  of  the 
partnership  and  it  is  not  necessary 
that  the  consent  of  the  other  part- 
ner be  obtained.  Haworth  v. 
Jackson,  80  Oregon,  132,  156  Pac. 
Rep.  590. 

Where  one  partner  without  the 
knowledge  or  consent  of  the  other 
transfers  all  of  the  partnership 
assets  to  a  corporation,  the  act 
operates  as  an  immediate  dissolu- 
tion of  the  copartnership.  Parry 
v.  Parry,  155  N.  Y.  Supp.  1072, 
92  Misc.  490. 

A  deed  of  property  from  one 


612        ACTIONS   BY,   AGAINST,    OR   BETWEEN    PARTNERS 

42.  —Notice. 

Against  those  who  at  or  before  the  time  of  their  transac- 
tion did  not  know  of  the  existence  of  the  partnership  or  the 
membership  of  the  retiring  partner,  evidence  of  notice  of 
dissolution  or  withdrawal  is  not  necessary.62  Against  those 
who  had  previous  knowledge  of  the  partnership,63  and  claim 
that  they  were  giving  credit  to  all  the  defendants,  but  who 
had  not  previously  given  them  credit,64  there  must  be  either 
evidence  of  reasonable  publicity  by  advertisement  in  a  news- 
paper 65  (and  this  is  a  matter  of  law  sufficient),66  or  of  such 
circulation  of  the  information,  as  to  fulfill  the- duty  of  the  re- 
tiring partners  to  put  the  public  on  guard.67  Evidence  tend- 
ing to  show  a  public  and  notorious  disavowal  of  further  re- 


partner  to  another  which  recites 
that  the  grantee  assumes  certain 
firm  indebtedness  does  not  oper- 
ate as  a  dissolution  of  the  firm  but 
is  evidence  of  the  fact.  Stockhau- 
sen  v.  Johnson,  173  Iowa,  413,  155 
N.  W.  Rep.  823. 

62  Paragraph  40  and  note;  Wade 
on  Notice,  215,  §  490. 

"No  notice  of  dissolution  is  nec- 
essary as  regards  persons  who  have 
had  no  knowledge  of  the  fact  that 
the  partnership  existed."  Portal 
First  International  Bank  v.  Brown, 
130  Minn.  210, 153  N.  W.  Rep.  522. 

63  The  general  notoriety  of  the 
existence  of  the  firm,  does  not  raise 
a    presumption    that    the    party 
dealing  had  knowledge  of  its  ex- 
istence.     Wade    on    Notice,    215, 
§490. 

64  The  fact  of  having  had  cash 
dealings  does  not  render  evidence 
of  actual  notice  necessary.    Clapp 
v.  Rogers,  12  N.  Y.  283,  affi'g  1 
E.  D.  Smith,  549. 

Actual    personal    notice    of    the 


withdrawal  of  one  of  the  members 
of  a  firm  need  not  be  given  to  one 
who  had  not  been  a  creditor  of  the 
firm  prior  to  the  retirement  but 
who  thereafter  sold  goods  to  it. 
Skeffington  v.  Daniel,  18  Ga.  App. 
262,  89  S.  E.  Rep.  458. 

65  City    Bank    of    Brooklyn    v. 
McChesney,  20  N.  Y.  240,  s.  P., 
City  Bank  of  Brooklyn  v.  Dear- 
born, Id.  244. 

66  Lansing  v.  Gaine,  2  Johns.  300. 
CTWardwell  v.  Haight,  2  Barb. 

549. 

Where  a  person  doing  business 
under  a  firm  name  transfers  the 
business  to  others,  he  is  liable  to 
all  persons  who,  knowing  of  his 
former  ownership  of  the  business, 
extend  credit  to  the  firm  after  the 
transfer,  if  no  public  or  personal 
notice  of  his  withdrawal  was  given, 
although  such  persons  had  not 
previously  transacted  business  with 
him.  Hendley  r.  Bittinger,  249 
Pa.  193,  94  Atl.  Rep.  831,  L.  R.  A. 
1915,  F.  711. 


ACTIONS   BY,   AGAINST,    OR   BETWEEN   PARTNERS        013 


sponsibility,  though  without  newspaper  advertisement,  is 
competent, — such  as  the  giving  of  actual  notice  to  all  who 
had  previously  dealt,  the  proper  change  of  the  firm  name,  the 
general  notoriety  of  the  change  throughout  the  trade,  and 
the  fact  that  the  firm  had  never  transacted  business  in  the 
place  where  the  plaintiffs  bought  their  paper.68  It  is  not  a 
question  of  actual  notice,  but  of  the  reasonable  fulfillment 
of  duty  and  diligence  in  the  public  announcement  of  the 
change.69  Where  the  creditor  testifies  that  he  had  no  notice, 
the  jury  may  still  infer  actual  notice  from  circumstances  of 
general  publicity.70 

Against  those  who   had  given  credit 71  to  the  firm  in 
previous  dealing,  there  must  be  evidence  of   actual   no- 


68  Lovejoy  v.  Spafford,  93  U.  S. 
(3  Otto)  441;  compare  Pitcher  v. 
Barnes,    17   Pick.   364;  Wade  on 
Notice,  226,  §§  513,  519. 

69  Lovejoy  v.  Spafford  (above). 
''Where  one  admits  the  previous 

existence  of  a  partnership,  the 
fact  that  there  was  a  general  rumor 
in  the  neighborhood  where  he 
resided  that  it  continued  to  exist, 
is  a  circumstance  to  show  that  he 
knew  of  same  and  held  or  per- 
mitted himself  to  be  held  out  as  a 
partner."  Guin  v.  Grasselli  Chemi- 
cal Co.  (Ala.),  72  So.  Rep.  413. 

70  Id.    The  fact  of  the  circulation 
in   the   community   of   a   general 
rumor  that  one  of  the  partners  had 
retired  is  admissible  in  evidence, 
not  as  being  of  itself  sufficient  to 
put  any  particular  person  on  notice 
of  the  dissolution  of  the  firm,  but 
as   a   circumstance    proper   to   be 
considered  by  the  jury  in  connec- 
tion with  the  other  evidence  bear- 
ing   on    the    question    of    notice. 
A-skew  v.  Silman,  95  Ga.  678,  22 
&  E.  Rep.  573. 


General  reputation  of  the  dis- 
solution in  a  community  where  a 
person  sought  to  be  charged  with 
notice  resides,  or  in  the  business 
community  to  which  the  parties 
belong,  is  admissible  as  tending  to 
show  notice.  Such  general  reputa- 
tion or  notoriety  is  not  in  itself 
notice,  but  is  admissible  for  the 
consideration  of  the  jury  in  de- 
termining whether  there  was  no- 
tice. Mims  v.  Brook,  3  Ga.  App. 
247,  59  S.  E.  Rep.  711. 

71  Those  who  deal  on  credit, 
even  for  small  sums,  and  on  a 
credit  not  defined  in  point  of  time, 
are  entitled  to  notice.  Clapp  v. 
Rogers,  12  N.  Y.  285,  affi'g  1  E.  D. 
Smith,  549. 

If,  without  notice  of  dissolution, 
a  lender  of  money  extends  the 
loan  after  dissolution  and  accepts 
a  new  note  in  the  firm  name,  he 
may  maintain  the  action  against 
the  members  of  the  old  firm,  in- 
cluding the  retired  members. 
Stockhausen  v.  Johnson,  173  Iowa, 
413, 155  N.  W.  Rep.  823. 


614        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


tice,72  or  of  circumstances  from  which  it  may  be  distinctly 
inferred.73  Notice  to  an  agent  or  servant  whose  business 
does  not  extend  to  the  receipt  of  such  communications 
is  not  enough,  without  evidence  that  it  was  communi- 
cated by  him.74  Proof  that  written  notice  was  properly 
mailed  to  the  person  sought  to  be  charged  with  notice,  is 
not  enough,  even  though  accompanied  by  proof  that  the 
letter  was  not  returned,75  if  the  actual  receipt  be  disproved; 76 


72  Deering  v.  Flanders,  49  N.  H. 
225. 

A  bank  on  receiving  deposits 
from  a  partnership,  becomes  a 
debtor  to  the  firm,  and  the  checks 
of  the  firm  are  drawn  and  paid  in 
diminution  of  the  indebtedness, 
which  acts  are  dealings  between 
the  bank  and  the  firm  and  entitle 
the  bank  to  actual  notice  of  dis- 
solution. National  Shoe,  etc., 
Bk.  v.  Herz,  24  Hun  (N.  Y.),  260, 
aff'd  in  89  N.  Y.  629. 

Where  a  partner  notifies  a  seller 
not  to  extend  further  credit  to  his 
firm,  and  that  he  will  not  be  liable 
for  goods  so  sold,  such  partner  is 
not  liable  for  the  price  of  goods 
subsequently  sold  to  the  firm  by  the 
person  receiving  the  notice.  St. 
Louis  Brewing  Ass'n  v.  Elmer, 
189  Mo.  App.  197,  175  S.  W.  Rep. 
102. 

"Austin  v.  Holland,  69  N.  Y. 
571,  affi'g  2  Supm.  Ct.  (T.  &  C.) 
253.  It  seems  that  the  fact  that 
the  former  partners  carried  on  busi- 
ness separately,  after  dissolution, 
for  years,  at  different  places  in  the 
same  town  with  their  former  deal- 
ers, would  sustain  a  finding  of  no- 
tice to  the  latter.  Per  BRONSON,  J., 
Coddington  v.  Hunt,  6  Hill,  595. 

It  is  the  business  of  a  retiring 


partner  to  bring  notice  of  his  with- 
drawal home  to  the  persons  with 
whom  he  has  dealt,  or  it  must  ap- 
pear that  the  fact  of  the  partner's 
retirements  came  to  the  knowledge 
of  those  dealing  with  the  firm. 
Farwell  v.  Cashman,  16  Mont. 
393, 41  Pac.  Rep.  443. 

74  Stewart  v.  Sonneborn,  49  Ala. 
178,  Wade  on  Notice,  220,  §  502. 

Proof  that  notice  of  the  retire- 
ment of  a  partner  was  given  to  a 
travelling  salesman,  is  evidence 
for  the  jury  to  consider  upon  the 
question  of  notice  to  the  sales- 
man's principal.  Ring  Furniture 
Co.  v.  Bussell,  171  N.  C.  474,  88 
S.  E.  Rep.  484. 

75  Kenney  v.  Atwater,  77  Penn. 
St.  34,  Wade  on  Notice,  220,  §  501. 

76  Austin  v.  Holland,  69  N.  Y. 
571,  affi'g  2  Supm.  Ct.  (T.  &  C.) 
253,  where  is  is  said  that  mailing 
is  presumptive  evidence.     To  the 
contrary,  see  Kenney  v.  Atwater 
(above). 

Actual  notice,  or  its  equivalent, 
of  the  dissolution  or  the  withdrawal 
of  any  member  of  the  firm  must  be 
shown  to  protect  the  retiring 
member  from  liability  for  debts 
subsequently  contracted.  Proof 
of  the  mailing  of  the  notice  of  dis- 
solution of  the  partnership  and  of 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        615 

but  with  slight  corroborative  evidence  of  actual  receipt  or 
knowledge,  it  may  be  enough  to  go  to  the  jury.77  Publica- 
tion of  notice  hi  a  newspaper  is  not  alone  enough,78  nor  is 
it  made  sufficient  as  matter  of  law  by  showing  that  the  party 
sought  to  be  charged  took  the  paper  or  habitually  read  it,79 
but  this  is  enough  to  go  to  the  jury  if  accompanied  by  the 
slightest  evidence  of  knowledge.80  Information  actually 
brought  to  the  attention  of  the  creditor  is  enough;  if  by 
published  notice,  it  is  not  essential  that  the  notice  be  signed 
by  the  partners.81  A  change  in  the  firm  name,  made  known 
to  the  party,  though  not  conclusive,  is  sufficient  evidence  of 
the  dissolution  or  withdrawal,  if  the  change  itself  is  signifi- 
cant of  the  retirement  of  the  member  in  question; 82  other- 
wise not.83 

III.  RULES  PECULIAR  TO  SURVIVING  PARTNERS 

43.  Actions  by  Survivor. 

At  common  law,  where  it  was  sufficient  to  allege  indebted- 
ness, a  surviving  partner  could  prove  a  debt  contracted  to 
the  firm,  and  the  death  and  survivorship,  under  a  declara- 
tion alleging  indebtedness  to  himself,  without  noticing  the 

the  retirement  of  certain  members  Supm.  Ct.  (T.  &  C.)  425;  Austin  v. 

thereof,  properly  addressed  to  per-  Holland  (above), 

sons    having    had    prior    dealings  79Vernon   v.    Manhattan   Bank, 

with  the  firm  is  prima  facie  evi-  22  Wend.  183,  affi'g  17  Id.  524. 

dence  that  the  notices  have  been  ^Wade  on  Notice,  221,  §§504, 

received  by  the  parties  to  whom  507,  1  Whart.  Ev.  641,  §  675. 

they  were  addressed,  but  such  pre-  81  Young  v.  Tibbetts,  32  Wise. 

sumption    may    be    rebutted    by  79,  s.  P.,  Robinson  v.  Worden,  33 

proof  that  the  said  notices  were  Mich.  316. 

never  received.    Phila.  &  Reading  82Newcomet    v.    Bretzman,    69 

C.  &  I.  Co.  v.  Kuecken,  191  111.  Penn.  St.  185.    A  change  of  part- 

App.  161.  ners  in  a  banking  house  is  suffi- 

77  Kenney  v.  Atwater  (above) .  ciently  notified  to  the  customers  of 

78  Bank   of   the   Commonwealth  the   house,    by   a   change   in   the 
v.  Mudgett,  44  N.  Y.  514.     Es-  printed  checks.    Barfoot  v.  Good- 
pecially  if  the  party  testifies  that  all,  3  Camp.  146. 

he  had  no  actual  notice.     Howell          83  American  Linen  Thread  Co.  v. 
v.  Adams,  68  N.  Y.  315,  affi'g  1      Wortendkye,  24  N.  Y.  550. 


616        ACTIONS    BY,    AGAINST,    OR    BETWEEN    PARTNERS 

partnership,  and  the  death  and  survivorship.84  So  far  as 
pleading  in  the  same  general  form,  by  alleging  defendant 
to  be  indebted  to  plaintiff  on  on  account,  etc.,  is  sanctioned 
under  the  new  procedure,85  the  like  evidence  is  equally  ad- 
missible now;  but  if  the  complaint  alleges  a  contract  with 
plaintiff,  or  a  consideration  proceeding  from  him,  proof  of  one 
with  or  from  the  firm,  is  a  variance,86  the  effect  of  which  de- 
pends on  whether  defendant  is  prejudiced.  An  action  to 
recover  possession  of  partnership  property  may  likewise  be 
sustained  in  the  name  of  the  survivor  alone.87  Evidence 


84  Whether,  the  contract  was  with 
the  firm  (Grant  v.  Shorter,  1  Wend. 
151);  or  with  the  survivor,  on  a 
consideration  proceeding  from  the 
firm.    Holmes  v.  D'Camp,  1  Johns. 
34. 

Where  the  surviving  partner  is 
also  sole  executor  he  can  account 
in  the  surrogate's  court  as  such 
surviving  partner,  in  connection 
with  his  account  as  executor.  In 
re  Hearns,  214  N.  Y.  426, 108  N.  E. 
Rep.  816. 

85  Allen  v.  Patterson,  7  N.  Y.  476. 

86  See    Ditchbum    v.    Sprachlin, 
5    Esp.    31;    Holmes    v.    D'Camp 
(above);  Hess  v.  Fox,   10  Wend. 
436.     Unless  the  firm  name  and 
the  survivor's  name  are  the  same. 
See  Bank  of  Cooperstown  v.  Woods, 
28  N.  Y.  545. 

87  Murray  v.  Mumford,  6  Cow. 
443. 

"The  death  of  a  partner  dis- 
solves the  partnership  and,  as  a 
general  rule,  the  surviving  partner 
is  entitled  to  possession  of  the 
partnership  assets  to  adjust  and 
settle  the  affairs  of  the1  concern." 
Murray  v.  Keeley  Institute,  190 
Mich.  295, 157  N.  W.  Rep.  87. 


"The  surviving  partner  is  vested 
with  some  discretion  as  to  the 
manner  of  closing  the  business  and 
the  time  to  be  taken  for  that  pur- 
pose. He  may  continue  the  busi- 
ness long  enough  to  close  it  up 
without  sacrificing  the  assets  and 
long  enough  to  make  an  advantage- 
ous disposition  of  the  stock."  The 
Big  Four  Implement  Co.  v.  Keyser, 
99  Kan.  8, 161  Pac.  Rep.  592,  L.  R. 
A.  1917,  C.  166. 

On  the  dissolution  of  a  partner- 
ship by  the  death  of  one  of  its 
members,  the  control  of  the  assets 
vests  in  the  surviving  partner. 
Loeb  v.  Huston,  98  Xeb.  314,  152 
N.  W.  Rep.  553. 

A  surviving  partner  does  not 
continue  to  carry  on  the  business 
of  the  partnership  where  no  busi- 
ness is  done  by  him  other  than 
selling  the  firm  property  and  col- 
lecting the  accounts.  Christian 
*.  Heuter,  190  111.  App.  596. 

A  deposit  in  a  bank  in  the  name 
of  a  firm  is  prima  facie  proof  of  the 
relation  of  debtor  and  creditor 
between  the  bank  and  the  de- 
positor, but  a  member  of  the  firm 
cannot  maintain  an  action  in  his 


ACTIONS    BY,    AGAINST,    OR    BETWEEN    PARTNERS        017 

tending  to  show  the  place  of  residence  and  death  of  one 
partner,  with  proof  of  the  death  at  the  same  place  of  a 
person  bearing  the  same  name,  establishes,  prima  facie  the 
title  of  the  other  partner  as  survivor.88  The  admissions  and 
declarations  of  the  deceased  are  not  competent  in  plaintiff's 
favor  to  prove  the  existence  and  title  of  the  partnership, 
unless  defendant  is  shown  to  have  been  in  privity  with  him.89 
The  admissions  and  declarations  of  the  surviving  partner 
to  the  effect  that  he  had  no  equity  or  interest  remaining,  but 
that  the  personal  representatives  were  entitled,  are  not 
relevant,  for  the  legal  title  is  in  him,  notwithstanding  the 
equities  of  the  parties.90 

44.  Actions  against  Survivor. 

The  same  principles  apply  in  an  action  against  a  survivor. 
Under  an  allegation  of  indebtedness  of  the  survivor,  evidence 
of  a  contract  of  the  firm,  and  of  death  and  survivorship  may 
be  proved,91  but  if  the  joint  contract,  etc.,  are  alleged,  they 

individual  name  to  recover  thereon,  between  himself  and  another  person 

Tallapoosa   County  Bank  v.   Sal-  are    not    admissible    in    evidence 

mon,  12  Ala.  App.  589,  68  So.  Rep.  against   the   latter    to    prove   the 

542.  fact   of   partnership,    unless    they 

88  Daby  v.   Ericsson,   45  N.   Y.  were  made  in  his  presence  or  fall 
786.  within  the  exception  to  the  general 

89  Such  evidence  would  be  com-  rule   excluding   hearsay   evidence, 
petent   against   the   administrator  Guin   v.    Grasselli    Chemical   Co., 
of   the   deceased,   but   is   not   as  72  So.  Rep.  (Ala.)  413. 

against   a   stranger,    even   on   an  9°  Daby  v.   Ericsson,  45  N.  Y. 

issue  raised  by  him  that  the  title  786.    Receipt  by  agent  of  new  firm 

is   in   the   administrator.      Brown  not  expressed  to  be  for  survivors, 

r.  Mailler,  12  N.  Y.  118,  s.  P.,  Ham-  held   not    competent.     Adams,  v. 

ilton  v.  Summers,  12  B.  Monr.  (Ky.)  Ward,  26  Ark.  135. 

11.     Entries  by  partner  since  de-  91  Goelet  v.  McKinstry,  1  Johns, 

ceased,  proven  to  be  in  his  hand-  Cas.  405. 

writing  and  made  hi  the  regular  Where    the    surviving    partner 

course  of  business,  are  presumptive  takes  possession  of  all  the  assets 

proof.      Thomson    v.     Porter,.  4  of  the  partnership  and  carries  on 

Strobh.  Eq.  64.  the  business  at  the  same  location 

The  declarations  of  one  person  under  a  name  very  similar  to  the 

as  to  the  existence  of  a  partnership  name   of   the  former   firm,   he   is 


618        ACTIONS   BY,    AGAINST,    OR    BETWEEN    PARTNERS 

should  be  proved; 92  both  rules  being  subject  to  the  present 
criterion  as  to  variance. 


45.  Actions  against  Representatives  of  Deceased  Partner. 
To  maintain  an  action  against  the  executor  or  adminis- 
trator of  the  deceased  partner,  it  is  enough  to  show  that  the 
survivor  is  wholly  insolvent.  This  may  be  shown  by  any 
common  law  proof;  exhaustion  of  the  remedy  at  law  is  not 
essential; 93  but,  on  the  other  hand,  evidence  that  the  remedy 


liable  as  a  purchaser,  and  charge- 
able in  an  accounting  with  a  share 
of  the  good  will.  Costa  v.  Costa, 
222  Mass.  280,  110  N.  E.  Rep. 
309. 

Where,  in  a  partnership  agree- 
ment provision  is  made  for  the 
purchase  by  the  survivor  of  the 
other's  interest,  the  obligation  to 
pay  interest  must  be  found  in  the 
agreement  itself  or  no  interest 
whatever  is  payable  until  the  pay- 
ment becomes  due.  Matter  of 
Columbia  Trust  Co.,  169  App. 
Div.  822,  155  N.  Y.  Supp.  676. 

A  surviving  partner  must  ac- 
count to  the  personal  representa- 
tives of  the  deceased  partner  for 
any  excess  of  assets  over  liabilities 
and  he  may  have  an  action  for 
contribution  against  the  estate 
of  the  deceased  if  there  are  insuf- 
ficient assets  of  the  copartnership 
to  meet  its  obligations.  Keyes  v. 
Metropolitan  Trust  Co.,  169  App. 
Div.  765,  155  N.  Y.  Supp.  888. 

A  bill  in  equity  may  be  main- 
tained by  the  personal  represent- 
atives of  a  deceased  partner  against 
the  survivors  to  compel  an  account- 
ing, and  for  a  discovery  of  the 
partnership  property  which  came 


into  their  hands.     Fried  v.  Burk, 
125  Md.  500,  94  Atl.  Rep.  86. 

A  surviving  partner  is  entitled 
to  the  exclusive  possession  and 
control  of  the  partnership  prop- 
erty, with  the  right  to  sell  and  dis- 
pose of  the  same  as  far  at  least 
as  is  necessary  and  proper  for  the 
purpose  of  closing  the  partnership 
business  and  discharging  the  claims 
of  partnership  creditors.  When  this 
is  accomplished,  such  partner  be- 
comes liable  to  an  accounting  to 
the  personal  representative  of  the 
deceased  partner,  and  to  him 
only.  An  action  to  compel  such 
an  accounting  cannot  be  main- 
tained by  an  heir  of  the  decedent. 
Lewis  v.  Lewis,  156  N.  W.  Rep. 
(Iowa)  332. 

92  NELSON,  J.,    Mott  v.  Petrie, 
15  Wend.  318,  and  cases  cited. 

93  Van   Riper  v.   Poppenhausen, 
43  N.  Y.  68. 

It  is  not  proper  in  an  action  by 
one  partner  for  an  accounting  to 
make  the  personal  representatives 
of  a  deceased  copartner  parties, 
where  there  is  no  allegation  of  the 
insolvency  of  the  firm.  Parry  v. 
Parry,  155  N.  Y.  Supp.  1072,  92 
Misc.  490. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS       619 

at  law  was  exhausted  by  execution  returned  unsatisfied  is 
enough,  although  it  be  shown  that  the  survivor  has  avail- 
able property  which  was  not  discovered  by  the  sheriff.94 

IV.    ACTIONS    BETWEEN    PARTNERS 

46.  Allegation  and  Burden  of  Proof  of  Partnership. 

In  an  action  for  an  accounting,  the  allegation  of  partner- 
ship is  material,  and  plaintiff  cannot  recover  on  proof  that 
he  is  a  creditor,95  not  even  on  proof  of  a  loan  payable  with 
share  of  profits.96  And  if  he  could,  usury,  though  not  pleaded, 
would  be  available  as  a  defense.97  If  the  existence  of  the 
partnership  is  denied  in  the  answer,  the  burden  of  proof  is 
on  the  plaintiff.98 

47.  Proof  of  Partnership. 

Where  the  interest  of  no  third  person  is  involved,  stronger 
proof  is  required  to  establish  the  partnership,  than  when  the 
question  arises  as  between  the  alleged  partners  and  third 
persons.99  If  the  agreement  was  embodied  by  the  parties 

94  Pope  v.  Cole,  55  N.  Y.  124,  A  release  of  a  debt  signed  by 

affi'g  64  Barb.  406.  the  surviving  partner,  he  having 

"  Salter  v.  Ham,  31  N.  Y.  321.  title  to  all  the  partnership  assets, 

96  Arnold   v.   Angell,   62   N.   Y.  bars  any  action  against  the  debtor 

508,  rev'g  38  Super.  Ct.  (J.  &  S.)  by  the  representatives  of  the  de- 

27.     Compare  Marston  v.  Gould,  ceased  partner.     Secor  v.  Trades- 

69N.Y.220.  men's  National  Bk.,   148  N.   Y. 

"Arnold  v.  Angell  (above).  App.  Div.  141,  133  N.  Y.  Supp. 

98Gatewood  v.  Bolton,  48  Mo.  197. 

78;  McBride  v.  Ricketts,  98  Iowa,  »  Chisholm  v.  Cowles,  42  Ala. 

539,  67  N.  W.  Rep.  410.    In  a  bill  179;  Watson  v.  Hamilton,  180  Ala. 

in  equity  against  a  partner  for  an  3. 

account  where  the  partnership  is  Where  two  persons  enter  into 

denied,    the    declarations    of    the  a  joint  adventure  upon  the  under- 

defendant  made  prior  to  any  dif-  standing  that  each  of  the  parties 

ference  between  him  and  the  plain-  shall  pay  an  equal  amount  of  all 

tiffs  are  not  admissible  to  corrobo-  the  expenses,  the  conclusion  neces- 

rate    his    testimony.      Fraser    v.  sarily  follows  that  they  are  to  share 

Linton,  183  Pa.  St.  186,  38  Atl.  equally  in  all  the  proceeds  of  the 

Rep.  589.  enterprise.     Galbraith   v.   Devlin, 


620        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 


in  a  writing,  it  must  be  produced  or  accounted  for.1  If  not 
written,  it  may  be  proved  by  parol,2  notwithstanding  it  was 
to  continue  for  more  than  a  year; 3  and  for  this  purpose  the 
conduct  and  declarations  of  the  parties,4  and  the  entries  in 
the  firm  books,5  are  competent,  subject  to  the  general  quali- 
fication that  the  concession  of  one  is  not  evidence  against 
another.6  The  question  of  partnership  or  not,  is  to  be  de- 
termined chiefly  by  ascertaining  what  were  the  intentions  of 
the  parties,  as  manifested  in  the  transactions  shown.7  Mu- 


85  Wash.  482,  148  Pac.  Rep. 
589. 

1  The  attorney  who  drew  the 
articles  is  privileged,  if  he  acted 
for  the  party  claiming  the  benefit 
of  the  privilege,  and  not  for  the 
adverse  party  (see  Yates  v.  Olm- 
stead,  56  N.  Y.  632,  rev'g  65  Barb. 
43) ;  if  he  acted  for  both,  he  is  not 
(see  Whiting  v.  Barney,  30  N.  Y. 
330). 

If  deceased,  his  contempora- 
neous entries  in  his  accounts,  and 
his  drafts  of  the  articles  and  of 
other  papers  connected  therewith, 
are  competent,  for  the  purpose  of 
corroborating  other  evidence  as 
to  the  date  and  contents  of  the 
lost  articles.  Moffat  v.  Moffat,  10 
Bosw.  468,  493. 

The  intentional  destruction  of  the 
articles  by  the  interested  party, 
if  unexplained,  is  competent  to  go 
to  the  jury  against  him  in  corrob- 
oration  of  evidence  of  their  con- 
tents; but  the  fact  of  spoliation 
does  not  alone  raise  a  legal  pre- 
sumption that  their  contents  were 
as  alleged  by  the  other  party.  Id. 
501. 

Before  a  court  is  justified  in 
setting  aside  a  written  agreement 
of  partnership  deliberately  exe- 


cuted between  two  business  men, 
there  must  be  a  very  clear  pre- 
ponderance of  positive  and  con- 
vincing evidence  sustaining  the 
charge  that  one  was  induced  to 
sign  it  by  fraud  or  deceit.  La- 
vigne  v.  Coyne,  188  Mich.  382, 
154  N.  W.  Rep.  126. 

2Randel  v.  Yates,  48  Miss. 
685.  As  to  the  case  of  partnership 
in  lands,  compare  Fair  child  v. 
Fairchild,  64  N.  Y.  471,  affi'g  5 
Hun,  407;  Levy  v.  Brush,  45  N.  Y. 
589,  rev'g  8  Abb.  Pr.  N.  S.  418, 
s.  c.,  1  Sweeny,  653;  Smith  v. 
Burnham,  3  Sumn.  435. 

3  Smith  v.  Tarleton,  2  Barb.  Ch. 
336. 

<Shelmire's  Appeal,  70  Pa.  St. 
281. 

Contract  of  partnership,  except, 
perhaps,  one  contemplating  the 
purchase  and  sale  of  land,  may  be 
implied  from  conduct  and  circum- 
stances, if  significant  enough  to  con- 
vince the  mind.  Watson  v.  Ham- 
ilton, 180  Ala.  3,  60  So.  Rep.  63. 

6Frick  ».  Barbour,  64  Pa.  St. 
120. 

6  See  paragraphs  11  and  14,  where 
the  principle  is  more  fully  stated. 

'Salter  v.  Ham,  31  N.  Y.  321; 
Phillips  v.  Phillips,  49  111.  437; 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS       621 

tual  intention  and  assent  to  the  relation  is  enough;  but  the 
absence  of  them  does  not  necessarily  disprove  partnership, 
because  the  contract  that  was  entered  into  may  conclusively 
manifest  an  intent  to  create  the  relation,  although  they  were 
at  the  time  in  fact  unaware  of  the  legal  effect.8  Hence,  the 
facts  being  proved  on  uncontradicted  testimony,  the  ques- 
tion is  one  of  law  for  the  court.9  The  intention  of  the  par- 
ties, together  with  the  facts,  must,  as  between  themselves, 
be  decisive  of  the  question  as  to  the  existence  of  the  partner- 
ship and  as  to  its  extent.  The  parties  should  not  be  per- 
mitted to  testify  as  to  whether  they  regarded  each  other  as 
partners,  for  the  reason  that  the  construction  of  contracts, 
whether  written  or  verbal,  is  for  the  court,  and  cannot  be 
expounded  by  witnesses.  Parties  may  become  partners  with- 
out their  knowing  it,  the  relation  resulting  from  the  terms 
they  have  used  in  their  contract,  or  from  the  nature  of  the 
undertaking;  and  the  testimony  of  either  as  to  whether  he 
regarded  the  other  as  his  partner  is  incompetent  as  against 
the  other,10  though  competent  against  himself. 

As  between  the  parties,  equity  allows  the  admission  of 
parol  evidence  of  the  course  and  business  of  the  partners, 
either  by  general  acquiescence  or  positive  acts  subsequent 
to  the  articles,  for  the  purpose  of  showing  the  practical  con- 
struction they  have  put  on  the  articles,  or  even  of  inferring 
that  they  have  abandoned  disused  provisions.11  On  the 
continuance  of  the  business  by  the  same  parties  after  the 
expiration  of  the  time  fixed  in  the  articles,  the  natural  pre- 
sumption is  that  the  old  articles  are  adopted,  except  the 
provisions  as  to  term  or  termination.12 

Groves  v.  Tallman,  8  Nev.   178.  179.     And  see  Bitter  v.  Rathman, 

Agreement  to  execute  a  deed  of  61  N.  Y.  512. 
partnership   held   to   constitute   a          10Lintner  v.  Milliken  (above). 
partnership  as  between  the  parties.          u  Story  on  Partn.  326,  §  192. 
Syres  v.  Syres,  L.  R.  1  App.  Gas.          12  U.  S.  Bank  v.  Binney,  5  Mass. 

174,  s.  c.,  15  Moak's  Eng.  52.  176, 185;  Story  on  Partn.  332,  §  198. 

8  Lintner    ».    Milliken,    47    111.          Where  one  of  three  partners  be- 
178.  came  insane  and  another  died,  it 

9  Chisholm   v.   Cowles,   42   Ala.  is  to  be  presumed  that  the  partner 


622        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


48.  Order  of  Proof. 

In  taking  the  final  accounts,  ascertain:  1.  How  the  firm 
stands  as  to  non-partners  (including  co-adventurers);  2. 
What  each  partner  is  entitled  to  charge  against  the  other  for 
everything  he  has  advanced  or  brought  in  as  a  partnership 
transaction,  and  also  to  charge  against  him  what  that  other 
has  not  brought  hi  as  he  ought,  or  has  taken  out  in  excess  of 
what  he  ought;  and  then,  3.  Apportion  between  them  the 
profits  to  be  divided  or  losses  to  be  made  good,  and  ascer- 
tain what,  if  anything,  any  partner  should  pay  to  another, 
in  order  that  all  cross  claims  may  be  settled.13  Partnership 


who  continued  to  carry  on  the 
business  did  so  pursuant  to  the 
original  articles  of  agreement.  Cole 
v.  Cole,  119  Ark.  48,  177  S.  W. 
Rep.  915. 

13  Neudecker  v.  Kohlberg,  3 
Daly,  410;  West  v.  Skip,  1  Ves. 
Sr.  242. 

Partnership  debts  must  be  paid 
out  of  the  partnership  assets  before 
the  debts  due  by  it  to  one  of  the 
members  thereof  can  be  lawfully 
paid.  Whitecloud  Milling,  etc., 
Co.  ».  Thomson,  264  Mo.  595,  175 
S.  W.  Rep.  897. 

When  a  member  of  a  solvent 
copartnership  sells  in  good  faith 
his  interest  to  his  copartner,  and 
the  latter  assumes  the  payment 
of  the  debts,  the  retiring  partner 
loses  his  equitable  right  to  require 
that  the  partnership  assets  be  ap- 
plied to  the  payment  of  the  part- 
nership debts.  Rapple  v.  Button, 
226  Fed.  Rep.  430,  141  C.  C.  A. 
260. 

The  partner  that  may  be  forced 
to  pay  firm  debts  has  his  right  of 
accounting  and  contribution  from 
his  copartners.  Webb  v.  Butler, 


192  Ala.  287,  68  So.  Rep.  369, 
Ann.  Gas.  1916,  D.  815. 

Partnership  creditors  are  en- 
titled to  have  the  firm  assets  ap- 
plied to  the  payment  of  the  part- 
nership debts  in  preference  to  the 
personal  liabilities  of  the  individual 
parties,  where  there  are  not  suf- 
ficient partnership  assets  to  sat- 
isfy both.  Springhetti  v.  Hilden, 
61  Colo.  591,  157  Pac.  Rep. 
1162. 

Where,  on  an  accounting,  each 
of  the  former  partners  claims  prop- 
erty as  individual  property,  the 
court  will  not  ordinarily  appoint  a 
receiver  to  take  possession  of  the 
property  until  there  has  been  a 
determination  of  the  question  of 
title.  Bacon  v.  Engstrom,  129 
Minn.  229,  152  N.  W.  Rep.  264, 
537. 

There  is  an  implied  obligation 
between  general  partners  that  on 
the  termination  of  the  partnership 
they  will  account  to  each  other 
and  settle  and  pay  any  balances 
due  among  themselves.  To  bring 
about  such  accounting  and  set- 
tlement an  action  will  lie.  Brooks 


ACTIONS   BY,   AGAINST,_OR   BETWEEN    PARTNERS       623 


transactions  are  not  excluded  from  the  accounting  because 
not  alleged  in  the  complaint.14 

49.  Evidence  of  Firm  or  Individual  Transactions. 

To  bring  in  the  transaction  had  by  a  partner,  but  not  in 
the  firm  name,  it  is  not  enough  to  show  merely  that  it  was 
in  violation  of  the  express  or  implied  agreement  of  the  partner 
to  devote  his  attention,  etc.,  to  firm  business; 15  but  it  is 
enough  to  show  that  it  was  in  a  business  in  rivalry  with 


0.  Campbell,  97  Kan.  208,  155  Pac. 
Rep.  41. 

The  appropriate  remedy  is  an 
equitable  action  for  an  account- 
ing. Lobsitz  v.  E.  Lissberger  Co., 
168  App.  Div.  840, 154  N.  Y.  Supp. 
556. 

Surviving  partners  have  no  right 
to  take  the  partnership  property 
at  their  own  valuation.  Fried  v. 
Burk,  125  Md.  500,  94  Atl.  Rep. 
86. 

An  indebtedness  due  a  partner- 
ship is  not  subject  to  attachment 
by  a  creditor  of  an  individual  part- 
ner until  after  final  adjustment  of 
all  the  firm  accounts  and  payment 
of  the  firm  liabilities.  Lacy  v. 
Greenlee,  75  W.  Va.  317,  84  S.  E. 
Rep.  921. 

It  is  the  duty  of  one  partner  to 
disclose  to  the  other  any  bargains 
affecting  their  joint  interest  en- 
tered into  with  third  parties  for 
his  own  benefit,  as  well  as  any 
matters  of  business  within  the 
scope  of  their  agreement,  of  which 
the  other,  not  having  means  of 
information,  is  ignorant.  Arnold 
v.  Maxwell,  223  Mass.  47,  111  N.  E. 
Rep.  687. 

The  good  will  of  a  business,  in- 


cluding the  right  to  use  the  es- 
tablished firm  name,  is  capable  of 
sale.  Barclay  v.  Barclay,  172 
App.  Div.  548,  158  N.  Y.  Supp. 
1045. 

14  Boyd  v.  Foot,  5  Bosw.  110. 

15  Dean  v.  McDowell,  26  Weekly 
R.  486;  and  see  Clements  v.  Norris, 
38  L.  T.  N.  S.  591. 

In  ordinary  partnerships  each 
partner  is  an  agent  for  the  firm, 
and  has  power  to  bind  his  co- 
partners by  any  act  or  transactions 
pertaining  to  the  partnership  deal- 
ings or  that  is  within  the  scope  of 
the  business  carried  on  by  the 
firm.  Rocky  Mt.  Steed  Farm  Co. 
v.  Lunt,  46  Utah,  299,  151  Pac. 
Rep.  521. 

In  their  dealings  with  each 
other  partners  occupy  a  position 
of  trust  and  confidence.  A  purer 
and  more  elevated  morality  is 
demanded  of  partners  than  the 
common  morality  of  trade,  and 
the  standard  by  which  they  are 
tried  in  a  court  of  equity  is  far 
higher  than  the  ordinary  standards 
of  business.  Questionable  deal- 
ings of  any  kind  will  not  be  toler- 
ated. Stem  v.  Warren,  161  N.  Y. 
Supp.  247,  96  Misc.  362. 


624        ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS 


that  of  his  firm; 16  or  that  it  was  by  the  partnership  relation 
that  he  was  enabled  to  make  the  contract 17  (as,  for  instance, 
where  the  consideration  was  drawn  from,18  or  the  liability 
chargeable  upon  or  assumed  by,19  the  firm),  or  by  means  of 
use  of  the  firm  property  or  credit,20  or  that  he  made  a  secret 
arrangement  for  an  individual  profit  from  their  transac- 
tions,21 or  took  any  unfair  advantage  of  his  connection  with 
the  firm.  And  in  such  cases  it  is  not  necessary  to  prove  that 
any  loss  accrued  to  the  firm.22  Assent  by  the  copartner  to 
the  carrying  on  of  a  transaction  in  the  name  of  the  other  is  not 
necessarily  an  assent  to  the  claim  of  the  other  to  the  profits 
of  the  transaction.23 


16  Somerville  v.  Mackey,  16  Ves. 
382;  Locke  v.  Lynam,  4  Ir.  Ch. 
188. 

"There  is  no  general  principle 
of  partnership  which  renders  one 
partner  liable  to  his  co-partners 
for  his  honest  mistakes.  So  far  as 
losses  result  to  a  firm  from  errors 
of  judgment  of  one  partner  not 
amounting  to  fraud,  bad  faith  or 
reckless  disregard  of  his  obliga- 
tions, they  must  be  borne  by  the 
partnership.  Each  partner  owes 
to  the  firm  the  duty  of  faithful 
service  according  to  the  best  of 
his  ability.  But,  in  the  absence 
of  special  agreement  no  partner 
guarantees  his  own  capacity." 
Hurter  v.  Larrabee,  224  Mass. 
218, 112  N.  E.  Rep.  613. 

Where  a  partnership  has  been 
wilfully  and  wrongly  broken  up  by 
a  partner,  the  other  partner,  if  he 
has  kept  his  covenants,  may  bring 
an  action  at  law  and  recover  dam- 
ages, the  measure  being  the  value 
to  him  of  the  continuance  of  the 
agreement  during  the  covenanted 


term.    Kebart  v.  Arkin,  232  Fed. 
Rep.  454,  146  C.  C.  A.  448. 

17  Russell   v.   Austwich,    1    Sim. 
52;   Mitchell  v.   Reed,  61   N.   Y. 
123,  rev'g  61  Barb.  310. 

18  See  Cox  v.  McBurney,  2  Sandf. 
561 ;  but  compare  Campbell  v.  Mul- 
lett,  2  Swanst.   551;  Comegys  ». 
Vasse,  1  Pet.  193. 

19  Nichols  v.  English,  3  Brews. 
260. 

20  Herrick    v.    Ames,    8    Bosw. 
115. 

"Manuf.  Nat.  Bank  v.  Cox,  2 
Hun,  572;  aff'd  without  further 
opinion  in  59  N.  Y.  659. 

An  action  at  law  will  not  lie 
between  partners  upon  a  claim 
growing  out  of  partnership  trans- 
actions until  the  business  is  wound 
up  and  the  accounts  finally  settled. 
Li  Sai  Cheuk  v.  Lee  Lung,  79  Ore. 
563,  146  Pac.  Rep.  94,  156  Pac. 
Rep.  254;  Commons  v.  Snow,  194 
111.  App.  569. 

22  Id.;  Mitchell  v.  Reed  (above). 

23  Bast's  Appeal,   70  Penn.   St. 
301. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS       625 


50.  Title  to  Real  Property. 

Real  property  the  legal  title  of  which  is  in  a  member,  is 
presumed  to  belong  to  him,  although  occupied  and  used  by 
the  firm,  until  it  is  shown  to  be  partnership  property,  either 
by  evidence  that  there  was  an  agreement  to  that  effect, 
or  that  it  was  acquired  with  partnership  funds  for  partner- 
ship purposes.24  For  this  purpose  parol  evidence  is  admis- 
sible as  between  the  partners  and  their  representatives,  to 
show  that  a  conveyance  to  a  partner  was  for  the  benefit 
of  the  firm.25  And  where  the  statute  forbids  a  resulting 
trust  unless  the  conveyance  is  so  taken  without  the  knowl- 
edge of  the  party  paying  the  consideration,  the  court  will 


24  Hogle  v.  Lowe,  5  Reporter, 
118. 

Where  land  is  bought  by  the 
members  of  a  partnership  with  the 
money  belonging  to  the  firm,  and 
the  legal  title  is  taken  in  the  name 
of  only  one  member,  an  implied 
trust  arises  in  favor  of  the  partner- 
ship and  the  members  become 
equitable  owners  and  equitable 
tenants  in  common  of  the  lands. 
Roach  v.  Roach,  143  Ga.  486,  85 
S.  E.  Rep.  703. 

In  the  absence  of  evidence  in- 
dicating an  intention  to  the  con- 
trary, a  presumption  of  owner- 
ship follows  the  legal  title.  To 
overcome  this  presumption  and 
warrant  the  inference  that  title 
in  the  individual  partner  is  held 
in  trust  for  the  firm,  the  evidence 
must  be  clear,  satisfactory,  and 
unequivocal.  Smith  v.  Smith,  160 
N.  W.  Rep.  (Iowa)  756. 

It  is  of  little  significance  by 
whom  title  is  taken,  whether  in 
the  name  of  one  of  the  partners  or 
in  the  names  of  all  of  them,  or  in 
the  partnership  name,  as  to  whether 


the  property  constitutes  firm  as- 
sets. The  principal  and  controlling 
factors  are,  with  what  funds  the 
property  is  purchased,  the  uses 
to  which  it  is  put,  and  the  inten- 
tion of  the  members  of  the  part- 
nership at  the  time.  Sieg  v. 
Greene,  227  Fed.  Rep.  41,  141  C. 
C.  A.  589. 

Equity  will  convert  real  estate 
into  personalty,  and  so  treat  it  in 
winding  up  a  concern  although  the 
legal  title  may  have  been  vested 
in  one  of  the  partners.  Minter  v. 
Minter,  80  Oregon,  369,  157  Pac. 
Rep.  157. 

25  Fan-child  v.  Fairchild,  64  N.  Y. 
471,  affi'g  5  Hun,  407.  Contra,  as 
against  creditors,  purchasers,  etc., 
Le  Fevre's  Appeal,  69  Penn.  St. 
122;  Ebbert's  Appeal,  70  Id.  79. 
The  question  as  to  whether  real 
estate  is  partnership  property  may 
be  determined  on  parol  evidence, 
independent  of  the  particular  form 
which  the  transaction  took  or  the 
name  in  which  the  title  was  taken. 
Greenwood  v.  Marvin,  111  N.  Y. 
423,  19  N.  E.  Rep.  228. 


626       ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 

not  presume  knowledge;  but  in  support  of  a  clear  equity, 
the  court  may,  from  the  fact  that  those  paying  intended  the 
conveyance  to  be  taken  in  the  grantee's  name,  presume  that 
he  intended  it  to  recognize  his  equity,  and  was  ignorant  of 
the  fact  that  it  did  not.26  The  fact  that  land  is  held  in  the 
names  of  the  several  persons  alleged  to  be  partners,  or  in  the 
name  of  one  for  the  benefit  of  all,  is  not  alone  evidence  of 
copartnership  between  them  with  respect  to  it.27  But  where 
partnership  is  shown  to  exist,  and  land  is  conveyed  to  the 
several  partners,  evidence  of  actual  use  for  partnership  pur- 
poses, or  of  a  positive  agreement  making  it  partnership 
property,  is  not  essential.  If  paid  for  with  partnership 
funds,  it  is  then  a  question  of  intention  whether  the  prop- 
erty is  held  by  the  partners  as  tenants  in  common,  or  whether 
it  is  partnership  property.  In  the  absence  of  other  evidence, 
the  manner  in  which  the  accounts  are  kept,  whether  the 
purchase-money  was  severally  charged  to  the  members, 
or  whether  the  accounts  treat  it  as  they  do  the  other  firm 
property,  as  to  purchase-money,  income,  expenses,  etc.,  are 
controlling  circumstances  in  determining  such  intention,28 
and  from  these  circumstances  an  agreement  may  be  inferred. 
The  same  evidence  which  would  make  it  partnership  prop- 
erty, for  the  purpose  of  paying  debts  and  adjusting  the 
equity  between  the  copartners,  establish  it  for  the  purpose  of 
final  division.29 

28  Fairchild  v.  Fairchild  (above),  valid,   and   operates   to   vest   the 

Where  a  partnership  exists  and  full  equitable  title  in  the  members 

land  is  purchased  with  the  money  of  the  partnership  as  tenants  in 

or  property  belonging  thereto,  and  common.     Robinson  v.  Daughtry, 

title   taken  in   the  name   of   one  171  N.  C.  200,  88  S.  E.  Rep.  252. 

partner,  a  resulting  trust  arises  in  K  Fairchild  v.  Fairchild  (above) . 

favor  of  the  firm.     Lutz  v.  Billick,  "Real    estate,    upon   being    ac- 

172  Iowa,  543, 154  N.  W.  Rep.  884.  quired  by  a  co-partnership,  is  to 

27  Thompson  v.  Bowman,  6  Wall,  be   treated   as   having  been   con- 
317.  verted  into  personalty  to  the  ex- 

28  But    not    necessarily    conclu-  tent  that  it  may  be  required  to 
«ive.     Grubb's  Appeal,  66  Penn.  meet  partnership  obligations  and 
St.  117, 128.  to    pay    any    balance    owing   one 

A  deed  executed   to  a   firm  is      partner  by  the  other  in  the  settle- 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        627 


51.  Evidence  to  Charge  Member  with  Assets. 

Partners  who  are  not  shown  to  have  had  exclusive  man- 
agement, are  not  to  be  charged  with  income,  etc.,  without 
evidence  that  they  actually  received  it.30  And  those  who  had 
exclusive  management  may  be  charged  with  the  whole  capi- 
tal; but  not  with  uncollected  debts,  without  evidence  of 
actual  receipt  or  negligence,31  or  of  refusal  to  give  account.32 

52.  Evidence  to  Credit  Member  with  Payments  or  Share. 
The  interest  of  each  is  presumed  equal  in  the  absence  of 

proof.33  Profits  of  a  continuous  enterprise,  may  for  the 
purpose  of  equable  division,  be  presumed  to  have  accrued 
rat  ably  as  the  work  progressed.34 

63.  Partnership  Books,  etc.,  as  Evidence. 

Prima  facie  the  books  of  a  partnership  are,  as  between  the 
partners,  evidence  for  them  all  and  against  them  all.35  En- 


ment  of  its  affairs."  Smith  v. 
Smith,  160  N.  W.  Rep.  (Iowa) 
756. 

"Real  estate  which  belongs  to  a 
partnership  is  treated  in  equity 
as  personal  property  only  so  far  as 
is  necessary  and  as  it  may  be 
needed  to  pay  the  debts  of  the 
partnership  and  adjust  the  equities 
of  the  partners."  Sieg  v.  Greene, 
227  Fed.  Rep.  41,  141  C.  C.  A. 
589. 

30  Richardson  v.  Wyatt,  2  Dess. 
471,  481. 

31  See  Gunnell  v.  Bird,  10  Wall. 
304, 308. 

32  Gillett  v.  Hall,  13  Conn.  426, 
435. 

33  Fox  Dig.  L.  of  P.  59;  Gould  v. 
Gould,  6  Wend.  267.     Contra,  as 
to  profits,  3  Bosw.  115.    Whether 
difference  in  contributions  is  alone 
sufficient    evidence    of    intent    to 


share  unequally,  compare  Neu- 
decker  v.  Kohlberg,  3  Daly,  467; 
Story  on  Partn.  35,  §  24.  See  also 
Whitcomb  v.  Convers,  119  Mass. 
38,  s.  c.,  20  Am.  Rep.  311. 

34  Clark  v.  Gilbert,  26  N.  Y.  279, 
rev'g  32  Barb.  576.    The  opinion 
of  an  expert  as  to  the  value  of  the 
good  will  of  a  partnership  is  not 
competent  as  evidence.     Kirkman 
v.  Kirkman,  26  App.  Div.  (N.  Y.) 
395. 

35  Lodge  v.  Prichard,  3  De  Gex, 
M.  &  G.  906. 

In  an  action  between  partners, 
books  of  account  kept  by  employees 
of  one  of  the  parties  are  not  evi- 
dence against  the  other  without 
proof  that  the  entries  correctly  re- 
corded partnership  transactions. 
Sligo  Furnace  Co.  v.  Quinn,  169 
App.  Div.  906,  153  N.  Y.  Supp. 
109. 


628        ACTIONS   BY,    AGAINST,    OR   BETWEEN   PARTNERS 

tries  made  during  the  continuance  of  the  firm,  hi  the  books 
to  which  a  partner  had  access  when  the  entries  were  made, 
or  immediately  afterwards,  are  presumptive  evidence  against 
him,36  in  the  absence  of  evidence  of  his  dissent.37  If  it  be 
shown  that  the  account  was  kept  by  the  partner,  in  whose 
favor  the  entry  is,  evidence  may  be  required  that  the  book 
was  a  partnership  book,  had  been  fairly  kept,  and  was  ac- 
cessible to  the  other.38  The  evidence  drawn  from  the  entries 
may  be  rebutted,  by  aid  of  proof  that  the  partner  against 
whom  they  are  adduced  had  no  knowledge  of  the  entries; 
and  any  circumstances,  such  as  distance,  course  of  busi- 
ness, etc.,  are  relevant.39  "  Where  some  of  the  books  have 
been  lost  or  destroyed,  the  existing  books  may  be  used,  and 
the  proof  derived  from  them  may  be  supplemented  by  such 
other  competent  evidence  as  the  parties  can  offer.40  A  simi- 
lar rule  applies  where  the  partner,  whose  duty  it  is  to  keep  the 
firm  books,  has  neglected  for  a  time  to  perform  that  duty."  41 
In  case  of  entries  made  after  dissolution,  the  party  adducing 
them  must  show  that  the  other  had  the  books,  and  an  oppor- 
tunity of  examining  them  at  the  time,  and  did  not  dissent.42 

36  Heartt   v.   Corning,   3   Paige,  37  Dunnell  v.  Henderson,  23  N.  J. 

566;   s.   P.,  Caldwell  v.  Lieber,  7  Eq.  174. 

Id.  483;  Morris  v.  Haas,  54  Neb.  38  Adams  v.  Funk,  53  111.  219; 

579,  74  N.  W.  Rep.  828.    But  in  Wheatley  v.  Wheeler,  34  Md.  62. 

case    of    a    dormant    partner,    it  39  U.  S.  v.  Binney,  5  Mas.  188. 

should  appear  or  be  presumable  40  Robertson  v.  Gibb,  38  Mich, 

that  he  not  only  had  access  to  the  165;  White  v.  Magann,  65  Wis.  86. 

books,  but  actually  inspected  them.  41  Van  Name  v.  Van  Name,  38 

Taylor     v.     Herring,     10     Bosw.  App.  Div.  N.  Y.  451, 455.    Where 

447.  the  loss  or  disappearance  of  the 

If  a  partner  who  exclusively  su-  books  of  a  partnership  is  proved, 

perintends   the   business   and   ac-  parol    evidence    is    admissible    to 

counts   of    the   concern,   by   con-  show  the  contents  of  the  books, 

cealment  of  the  true  state  of  the  and  such  evidence  may  properly 

accounts  and  business,  purchases  be  given  by  a  person  who  kept  the 

the  share  of  the  other  partner  for  books   in   question.     Stan  field   v. 

an  inadequate  price,  the  purchase  Knickerbocker  Trust  Co.,  1  App. 

will  be  held  void.    Guggenheim  v.  Div.  (N.  Y.)  592. 

Guggenheim,  159  N.  Y.  Supp.  333,  "  Pratt  v.   McHatton,   11   La. 

95  Misc.  332.  Ann.  262. 


ACTIONS   BY,    AGAINST,    OR   BETWEEN    PARTNERS        629 

64.  Evidence  of  Voluntary  Settlement. 

Evidence  of  an  oral  agreement  for  accounting  and  settle- 
ment, executed  by  a  statement  and  settlement  accordingly, 
though  subsequent  to  a  written  agreement  for  dissolution, 
is  competent.43  But  an  account  rendered  and  not  shown  to 
be  acquiesced  in,  is  not  enough  to  bar  an  action  for  an  ac- 
count.44 

"Wiggin  v.  Goodwin,  63  Me.          «  Wood's  Coll.  461,  §  298. 
389. 


CHAPTER  X 


ACTIONS  BY  AND  AGAINST  RECEIVERS 


1.  Allegation  of  appointment,  and 

right  of  action. 

2.  Evidence  of  appointment. 

3.  Leave  to  sue. 


4.  Evidence  of  transactions  of  de- 

fendant. 

5.  Action  against  receiver. 


1.  Allegation  of  Appointment,  and  Right  of  Action. 

In  those  jurisdictions  where  a  receiver  sues  in  his  own 
name,  as  such,  an  allegation  of  his  due  appointment  is  nec- 
essary, if  the  right  of  action  was  vested  in  him  by  the  ap- 
pointment; and  the  allegation,  if  not  admitted,  must  be 
proved.45  If,  on  the  other  hand,  the  right  of  action  is  not 
derived  through  his  appointment, — as,  for  instance,  where 
he  sues  on  a  contract  with  him  as  receiver, — he  need  not 
allege  his  appointment,  but  he  may  sue,  simply  describing 
himself  as  receiver.46  And  hi  those  States  where  a  foreign 


"  Bangs  v.  Mclntosh,  23  Barb. 
591;  and  see  Manley  v.  Rassiga, 
13  Hun,  288. 

If  a  receiver  sues  in  his  own  name, 
a  general  denial  will  put  the  bur- 
den upon  him  to  prove  his  right 
to  sue.  Homer  v.  Barr  Pumping 
Engine  Co.,  180  Mass.  163,  61  N. 
E.  Rep.  883,  91  Am.  St.  Rep.  269; 
Kirby  Lumber  Co.  v.  Cunningham, 
154  S.  W.  Rep.  (Tex.  Civ.  App.)  288. 

An  allegation  that  a  receiver  was 
"duly"  appointed  is  sufficient 
to  admit  proof  of  his  due  appoint- 
ment. Morgan  v.  Bucki,  30  N.  Y. 
Misc.  245,  61  N.  Y.  Supp.  929. 

« White  ».  Joy,  13  N.  Y.  (3 
Kern.)  83,  rev'g  11  How.  Pr.  36. 

A  receiver  must  allege  in  his  pe- 

630 


tition  enough  facts  to  show  his 
appointment  was  legal.  Rhorer 
v.  Middlesboro  Town,  etc.,  Co., 
103  Ky.  146,  44  S.  W.  Rep.  448, 
19  Ky.  Law  Rep.  1788. 

It  is  not  necessary  for  a  defend- 
ant corporation  which  is  in  the 
hands  of  a  receiver  to  set  forth  the 
order  appointing  such  receiver;  it 
is  sufficient  to  allege  the  fact  that 
he  was  appointed.  Ohio,  etc.,  R. 
Co.  v.  Anderson,  10  111.  App.  313. 

Where  the  title  of  the  action 
designates  the  plaintiff  as  receiver 
it  is  not  necessary  to  allege  his  ap- 
pointment in  the  complaint.  Nel- 
son v.  Nugent,  62  Minn.  203,  64 
N.  W.  Rep.  392. 

A    petition   which    alleges    that 


ACTIONS    BY    AND    AGAINST    RECEIVERS 


631 


receiver  is  not  recognized  by  the  courts,47  he  may  still  sue 
if  he  can  prove  a  cause  of  action  not  directly  dependent  on 
his  title  as  receiver.  Thus  any  action  which  may  be  sus- 
tained by  proof  of  possession  without  proof  of  title,48  or  by 
proof  of  a  contract  made  with  himself,49  or  a  transfer  to 
him,50  he  may  maintain;  and  the  fact  that  he  is  named  on 


the  applicant  was  appointed  a 
receiver  is  sufficient,  without  plead- 
ing each  step  in  the  proceeding  to 
show  his  appointment  was  valid. 
Matter  of  O'Connor,  65  Hun  (N. 
Y.),  620,  19  N.  Y.  Supp.  971,  47 
N.  Y.  St.  415. 

In  an  action  against  a  receiver 
his  appointment,  as  well  as  leave  to 
sue  him,  must  be  alleged.  Malott 
v.  State,  158  Ind.  678,  64  N.  E. 
Rep.  458. 

«See  Willits  v.  Waite,  25  N.  Y. 
584;  Cagill  v.  Woolridge,  4  Centr. 
L.  J.  6,  and  note;  High  on  Rec.  156, 
§239. 

But  a  receiver  of  a  bank  lo- 
cated in  a  sister  state,  who  was  ap- 
pointed by  the  comptroller  of  the 
currency,  was  said  to  be  neither  a 
foreign  receiver  nor  one  appointed 
by  the  court  of  a  sister  state.  He, 
therefore,  had  the  right  to  main- 
tarn  an  action  in  the  state  courts 
against  shareholders  of  the  bank 
to  recover  assessments  levied  upon 
them  and  the  doctrine  of  comity 
did  not  apply.  Peters  v.  Foster, 
56  Hun,  607, 10  N.  Y.  Supp.  389, 18 
N.  Y.  Civ.  Proc.  380. 

"Graydon  v.  Church,  7  Mich. 
36.  So  his  assignee  may  sue.  Hoyt 
v.  Thompson,  5  N.  Y.  338. 

«Helme  v.  Littlejohn,  12  La. 
Ann.  298. 

Though  a  party  to  whom  stock 


has  been  transferred  without  his 
consent  or  knowledge  has  the 
right  to  repudiate  the  transaction, 
he  is  presumed  to  be  the  owner  of 
the  stock  when  his  name  appears 
upon  the  books  of  the  bank  as  such 
owner,  and  the  burden  of  proof  is 
upon  him  to  show  that  he  is  not  in 
fact  the  owner.  Finn  v.  Brown, 
142  U.  S.  56,  12  S.  Ct.  136,  35  L. 
ed.  936. 

It  was  held  that  the  one  in 
whose  name  stock  appeared  on  the 
books  of  an  insolvent  bank  was 
presumptively  the  owner  thereof, 
the  burden  being  upon  him  to  prove 
that  he  did  not  purchase  the  stock, 
especially  as  it  appeared  that  at  the 
tune  of  the  bank's  failure  he  had 
certificates  of  the  stock  in  his  safe 
deposit  box  and  the  books  of  the 
bank  showed  a  credit  to  him  of 
several  past  dividends.  Alsop 
v.  Conway,  188  Fed.  Rep.  568, 
110  C.  C.  A.  366. 

But  see  Foote  v.  Anderson,  123 
Fed.  Rep.  659,  61  C.  C.  A.  5,  where 
it  was  held  that  the  mere  entry 
of  stock  on  the  bank's  books  hi  the 
defendant's  name,  without  any 
proof  of  his  knowledge,  assent  or 
any  act  of  dominion  over  it, 
was  not  evidence  of  his  owner- 
ship. 

50  Palmer  v.  Clark,  4  Abb.  New 
Cas.  25. 


632 


ACTIONS   BY   AND    AGAINST   RECEIVERS 


the  record  in  his  official  capacity  should  not  alone  defeat 
the  suit. 

2.  Evidence  of  Appointment. 

If  appointed  by  a  court  of  general  jurisdiction,  it  is  enough 
to  produce  the  decree,51  (when  appointed  in  a  cause),  or  the 
petition  and  order  (when  appointed  in  a  special  proceeding), 
with  his  bond  or  other  qualification,  without  producing  the 
proceedings  at  large.  The  appointment  of  a  receiver  of  a 
national  bank  is  proved  by  a  certificate  of  the  comptroller 
of  the  currency,  approved  and  concurred  in  by  the  secretary 
of  the  treasury,  and  reciting  the  existence  of  all  the  statu- 
tory facts.52  The  record,  while  it  remains  a  subsisting  order 
or  decree,  is  conclusive.53 

3.  Leave  to  Sue. 

Leave  to  sue  need  not  usually  be  proved,54  but  in  those 


51  Id.  It  seems  that  the  oath  and 
bond  may  be  presumed.  See  Day- 
ton v.  Johnson,  69  N.  Y.  419.  Com- 
pare Rockwells.  Merwin,45  Id.  168. 

The  order  appointing  the  re- 
ceiver is  admissible  when  a  ques- 
tion of  his  authority  is  in  issue. 
Harding  Paper  Co.  v.  Allen,  65 
Wis.  576,  27  N.  W.  Rep.  329. 

"The  comptroller  had  authority 
to  make  the  assessment  against 
the  stockholders,  and  .  .  .  such 
assessment  is  conclusive  as  to  the 
amount  to  be  collected,  (and)  can- 
not be  questioned."  Christopher 
v.  Norvell,  201  U.  S.  216,  26  S.  Ct. 
502,  50  L.  ed.  732,  5  Ann.  Cas.  740. 

It  is  for  the  comptroller  to  de- 
termine the  amount  to  be  collected 
in  enforcing  the  stockholders'  li- 
ability and  his  judgment  upon  the 
question  is  conclusive  and  cannot 
be  controverted  by  the  stock- 


holders. Rankin  v.  Miller,  207 
Fed.  Rep.  602. 

52  Platt  v.  Beebe,  57  N.  Y.  339. 

53  Vermont  &  Canada  R.  R.  Co. 
v.  Vermont  Central  R.  R.  Co.,  46 
Vt.  792. 

A  certified  copy  of  the  decree 
is  proof  of  the  appointment  of  a 
receiver.  Person  v.  Leary,  126 
N.  C.  504,  36  S.  E.  Rep.  35. 

Where  a  receiver  has  been  ap- 
pointed by  a  competent  court, 
there  is  a  presumption  that  such 
appointment  is  valid.  Keokuk 
Northern  Line  Packet  Co.  v.  David- 
son, 13  Mo.  App.  561. 

54  4  Abb.  N.  Y.  Dig.,  2d  ed.  423. 
A  receiver  who  brings  a  suit  must 

allege  his  authority  to  sue.  Hat- 
field  v.  Cummings,  152  Ind.  280, 
50  N.  E.  Rep.  817,  53  N.  E.  Rep. 
231. 

Where  a  receiver  institutes  an 


ACTIONS   BY   AND   AGAINST   RECEIVERS 


633 


jurisdictions  where  an  allegation  and  proof  of  it  is  required, 
the  court  may,  after  long  delay  to  object,  presume  that  it  was 
duly  had,  from  the  making  by  the  court  of  orders  facilitating 
the  progress  of  the  suit.55 


action  in  his  own  name  he  must 
allege  that  the  court  in  appointing 
him  gave  him  permission  to  do 
so.  Carver  ».  Kent,  70  Ind.  428. 

In  an  action  against  a  receiver 
it  is  necessary  to  allege  that  leave 
of  court  has  been  obtained.  Keen 
v.  Breckenridge,  96  Ind.  69;  St. 
Louis,  etc.,  R.  Co.  v.  Hamilton,  158 
111.  366,  41  N.  E.  Rep.  777. 

A  complaint  against  a  receiver, 
which  fails  to  allege  leave  of  court 
to  sue,  is  demurrable.  Burk  v. 
Muskegon  Mach.,  etc.,  Co.,  98 
Mich.  614,  57  N.  W.  Rep.  804. 

In  an  action  by  a  receiver  leave 
to  sue  need  not  be  alleged.  Allen 
v.  Baxter,  42  Wash.  434,  85  Pac. 
Rep.  26;  aff'd  46  Wash.  967,  89 
Pac.  Rep.  151. 

In  order  to  maintain  §  an  action 
a  receiver  must  prove  authority  to 
do  so.  Darner  v.  Gatewood,  2 
Neb.  (Unoff.)  561,  89  N.  W.  Rep. 
603. 

Before  a  receiver  can  sue  he  must 
show  that  he  has  been  given  au- 
thority by  the  court  appointing  him 
to  bring  the  action.  Peabody  v. 
New  England  Water  Wks.  Co., 
80  111.  App.  458,  rev'd  in  184  111. 
625,  56  N.  E.  Rep.  957,  75  Am. 
St.  Rep.  195;  St.  Louis,  etc.,  R.  Co. 
v.  Vandalia,  103  111.  App.  363. 

Where  a  receiver  brings  the  ac- 
tion, failure  to  prove  authority  to 
sue  is  fatal  to  the  case.  Screven  v. 
Clark,  48  Ga.  41. 


55  Jerome  v.  McCarter,  94  U.  S. 
(4  Otto)  734,  737. 

A  court  which  has  granted  leave 
to  bring  suit  against  a  receiver  who 
was  appointed  by  it  need  not  be 
informed  by  pleading  or  proof  of 
such  authority  to  sue.  Fox  River 
Paper  Co.  v.  Western  Envelope  Co., 
109  111.  App.  393. 

If  a  receiver  has  failed  to  obtain 
leave  of  the  court  to  bring  an  ac- 
tion, he  may  enter  an  order  nunc 
pro  tune  granting  him  leave  to 
bring  it.  De  La  Fleur  v.  Barney, 
45  N.  Y.  Misc.  515,  92  N.  Y.  Supp. 
926;  Washington  Trust  Co.  v. 
Local,  etc.,  Distance  Tel.  Co., 
73  Wash.  627,  132  Pac.  Rep.  398. 

The  rule  requiring  leave  to  be 
obtained  of  the  court  before  the 
receiver  can  either  sue  or  be  sued, 
prevents  any  unnecessary  waste  of 
the  assets  in  the  receiver's  hands 
in  unnecessary  litigation,  and  con- 
templates at  least  some  investiga- 
tion by  the  court  as  to  the  pro- 
priety of  the  commencement  of 
such  suits  before  permission  is 
granted.  Witherbee  v.  Witherbee, 
17  N.  Y.  App.  Div.  181,  45  N.  Y. 
Supp.  297. 

Where  a  receiver  sues  upon  a 
contract  which  he  has  made  as  re- 
ceiver he  need  not  allege  authority 
to  sue.  Pouder  v.  Catterson  127, 
Ind.  434, 26  N.  E.  Rep.  66. 

In  an  action  against  a  receiver, 
the  fact  that  plaintiff  has  failed  to 


634  ACTIONS   BY   AND    AGAINST   RECEIVERS 

4.  Evidence  of  Transactions  of  Defendant. 

In  general,  the  same  evidence  is  admissible  that  would 
be  admissible  in  an  action  between  the  defendant  and  the 
corporation  or  person  of  whose  property  plaintiff  is  receiver. 
In  an  action  by  the  receiver  of  a  corporation  against  its 
stockholders,  the  fact  that  the  name  of  defendant  appears 
on  the  stock-book  as  a  holder  of  stock,  raises  a  presumption 
that  he  is  its  owner,  and  throws  on  him  the  burden  of  giving 
evidence  to  the  contrary.56  In  the  case  of  a  national  bank, 
the  certificate  of  the  comptroller  of  the  currency  is,  as 
against  stockholders,  conclusive  evidence  of  the  regular  or- 
ganization and  existence  of  the  corporation,57  and  of  the 
extent  to  which  the  individual  liability  of  stockholders  shall 
be  enforced.58  But  the  ordinary  account  books  of  the  cor- 
poration, containing  their  entries  of  the  dealings  of  the  de- 
fendant with  the  corporation,  are  not  competent  against 
defendant,59  any  more  than  those  of  an  individual,  except 
on  some  special  ground  such  as  would  make  them  competent 
if  the  action  were  by  the  corporation, — as,  for  instance,  that 
defendant  actually  had  access  to  the  books  so  as  to  raise 
an  implied  admission  of  the  correctness  of  entries  not  ob- 
jected to  at  the  time.60 

6.  Action  against  Receiver. 

A  receiver,  acting  within  his  authority,  is  not  liable  per- 

allege  that  he  has  obtained  leave  See  Chapter  on  CORPORATIONS. 

of  court  is  not  a  ground  for  demur-  «°  See  Rockwell  v.  Merwin,  8 

rer,  but  the  receiver  may  apply  for  Abb.  Pr.  N.  S.  330,  45  N.  Y.  166. 

a  stay  of  proceedings  or  for  punish-  In  an  action  by  a  corporation  a 

ment  of  the  plaintiff  for  contempt,  ledger  containing  the  account 

Hirshfeld  v.  Kalischer,  81  Hun  against  -  the  defendant  was  held 

(N.  Y.),  606,  30  N.  Y.  Supp.  1027.  admissible  when  considered  in 

64  Tumbull  v.  Payson,  95  U.  S.  connection  with  the  plaintiff's  tes- 

(5  Otto)  418,  421,  and  cases  cited,  timony  that  the  defendant  had 

"Casey  v.  Galli,  94  U.  S.  (4  seen  the  entries  and  admitted 

Otto)  673.  their  correctness.  Wilkins-Ricks 

* Id.  Co.  v.  McPhail,  169  N.  C.  558,  86 

49  White  v.  Ambler,  8  N.  Y.  170.  N.  E.  Rep.  502. 


ACTIONS   BY   AND    AGAINST   RECEIVERS 


635 


sonally,  except  on  proof  of  personal  misconduct,  even  if  he 
do  not  object  that  leave  to  sue  him  was  not  sought; 61  but 
when  sued  for  interfering  with  property  which  the  decree 
by  which  he  was  appointed  did  not  authorize  him  to  meddle 
with,  plaintiff  need  not  show  leave  to  sue,  for  hi  such  case 
the  receiver  is  merely  a  trespasser.62  A  foreign  receiver  may, 
if  jurisdiction  be  acquired,  be  sued  here,  and  without  leave, 
if  it  be  shown  that  he  would,  by  the  law  of  the  State  where 
appointed,  be  held  liable  in  its  courts,  on  the  facts  of  the 
case.63 


61  Camp  v.  Barney,  4  Hun,  373. 
See  further  p.  162  of  this  vol. 

"A  personal  judgment  and  exe- 
cution cannot  properly  be  awarded 
against  a  receiver,  but  it  should 
be  against  him  in  his  official  ca- 
pacity, to  be  paid  in  due  course 
of  the  administration  of  his  trust." 
Malott  v.  Howell,  111  111.  App. 
233. 

«2  Hills  v.  Parker,  111  Mass.  508. 

A  receiver  who  took  possession 
of  property,  not  hi  fact  part  of  the 
receivership  assets,  even  though 
under  a  court  order,  was  a  mere 
trespasser,  and  the  plaintiff,  in 
such  case,  is  not  required  to  ob- 
tain leave  to  sue  prior  to  bringing 


his  action.  Kirk  v.  Kane,  87  Mo. 
App.  274.  See  also  Dec.  Digest 
Receivers,  Key  No.  174. 

If  the  plaintiff's  animals  were 
killed  by  a  railroad  while  operating 
under  a  receiver,  no  leave  of  the 
court  which  appointed  the  re- 
ceiver is  necessary  prior  to  bring- 
ing suit  against  him.  Robinson  v. 
Kirkwood,  91  111.  App.  54. 

83  Paige  v.  Smith,  99  Mass.  395. 

An  action  may  be  brought  in  the 
state  court  against  a  receiver  ap- 
pointed by  the  United  States 
Circuit  Court  for  the  district  of 
Massachusetts  without  leave  to 
sue.  Wall  v.  Platt,  169  Mass.  398, 
48  N.  E.  Rep.  270. 


CHAPTER  XI 


ACTIONS  BY  AND  AGAINST  TRUSTEES 


1.  Express  trusts. 

2.  Demand   before  suit,   and   no- 

tice. 

3.  Trustees'  receipts. 

4.  Compromises. 

5.  Justification    of    dealings    with 

the  estate. 


6.  Admissions    and    declarations 

of  the  cestui  que  trust. 

7.  — of  the  trustee. 

8.  Judgments. 

9.  Presumption  of  conveyance  by 

trustee. 

10.  Constructive    and    resulting 
trusts. 


1.  Express  Trusts. 

Under  the  statute  of  frauds,64  a  trust  need  not  be  created 
by  writing,  but  it  must  be  manifested  and  proved  by  writing, 
and  where  there  is  no  explicit  declaration,  the  nature  of  the 
trust,  and  the  terms  and  conditions  of  it,  must  sufficiently 
appear  so  that  the  court  may  not  be  called  upon  to  execute 
the  trust  in  a  manner  different  from  that  intended.65  Such 


"2  N.  Y.  Real  Property  Law, 
§  242;  Personal  Property  Law,  §  31. 

While  a  trust  may  be  created  by 
parol  it  can  only  be  proved  by 
writing  under  the  Maryland  stat- 
ute of  frauds.  Gordon  v.  McCulloh, 
66  Md.  245,  7  All.  Rep.  457. 

The  declarations  made  by  the 
grantor  of  real  estate  long  after 
he  has  parted  with  the  title  are  not 
competent  to  establish  a  trust 
therein.  Todd  v.  Munson,  53 
Conn.  579,  4  Atl.  Rep.  99. 

The  declarations  of  a  person 
holding  title  to  land  are  adminis- 
sible  for  the  purpose  of  proving  an 
express  trust  in  such  land.  Co- 
lumbus, etc.,  Ry.  Co.  v.  Braden, 
110  Ind.  558,  11  N.  E.  Rep.  357. 
636 


65Steere,  5  Johns.  Ch.  1,  11. 
Parol  evidence  is  not  admissible  to 
establish  an  express  trust  where 
the  answer  to  the  bill  of  complaint 
raises  the  defense  of  the  statute  of 
frauds.  Dick  v.  Dick,  172  111. 
578,  50  N.  E.  Rep.  142. 

An  express  trust  in  real  estate 
cannot  be  proved  by  parol.  Mc- 
Vay  v.  McVay,  43  N.  J.  Eq.  47, 
10  Atl.  Rep.  178. 

In  Texas  it  may  be  proved  by 
parol.  Osterman  v.  Baldwin,  6 
Wall.  116,  18  L.  ed.  730;  Todd  v. 
Munson,  53  Conn.  579,  4  Atl. 
Rep.  99. 

One  who  alleges  that  the  title 
to  property  is  held  in  trust  has  the 
burden  of  proving  the  trust.  Scott 


ACTIONS   BY   AND   AGAINST   TRUSTEES 


637 


a  trust  manifested  by  writing  not  intended  for  the  purpose, 
cannot  be  established  by  resorting  to  parol  evidence  to  sup- 
ply defects  or  omissions  in  the  written  evidence.66  No 


v.  Crouch,  24  Utah,  377,  67  Pac. 
Rep.  1068. 

Parol  evidence  is  admissible  to 
prove  that  a  member  of  a  firm 
holds  title  to  real  estate  as  trustee 
for  the  firm.  Springer  v.  Kroeschell, 
161  111.  358,  43  X.  E.  Rep.  1084. 

After  a  trustee  has  conveyed  the 
lands  to  the  beneficiaries  the  trust 
may  be  proved  by  parol  as  against 
the  creditors  of  the  trustee  who 
claim  that  the  conveyance  was  to 
defraud  them.  Silvers  v.  Potter,  48 
N.  J.  Eq.  539,  22  Atl.  Rep.  584. 

It  seems  that  a  trust  evidenced 
only  by  parol  testimony  and  writ- 
ten receipts  was  valid  at  common 
law  and  in  equity.  Arbury  v. 
De  Niord,  152  N.  Y.  Supp.  763. 

In  an  action  to  cancel  a  deed  of 
land  conveyed  by  the  plaintiff's 
alleged  trustee,  the  court  held  that 
a  parol  trust  could  not  be  fastened 
upon  a  prior  deed,  absolute  in  form 
and  made  to  the  trustee  at  a  time 
when  the  law  did  not  recognize  a 
parol  trust  in  land.  Chandler  v. 
Roe,  46  Okl.  349,  148  Pac.  Rep. 
1026. 

66  Cook  v.  Barr,  44  N.  Y.  156, 
161.  Contra,  Kingsbury  v.  Burn- 
side,  58  111.  310,  s.  c.,  11  Am.  Rep. 
67,  where  it  is  held  that  if  the  writ- 
ing affords  evidence  of  the  exist- 
ence of  a  trust,  the  terms  may  be 
supplied  aliunde.  If  there  be 
written  evidence  of  the  existence 
of  the  trust,  the  danger  of  parol 
declarations,  against  which  the 


statute  was  directed  is  effectually 
removed.  Whether  a  deed  to  one 
as  "trustee,"  but  without  de- 
claring for  whom  or  what  purpose, 
can  be  aided  by  parol,  compare 
Dillaye  v.  Greenough,  45  N.  Y. 
438;  Railroad  Co.  v.  Durant,  95 
U.  S.  (5  Otto)  576,  579. 

An  express  trust  cannot  be 
proved  by  oral  evidence.  Bowling 
v.  DeWitt,  96  S.  C.  435,  81  S.  E. 
Rep.  173. 

Parol  evidence  may  be  intro- 
duced to  show  that  the  grantee  of  a 
deed  holds  the  title  not  as  an  in- 
dividual but  as  a  trustee.  Gale  v. 
Harby,20Fla.  171. 

Parol  evidence  cannot  be  in- 
troduced to  vary  or  aid  a  written 
document  alleged  to  create  a  trust. 
Martin  v.  Baird,  175  Pa.  540,  34 
Atl.  Rep.  809;  Gale  v.  Sulloway,  62 
N.  H.  57. 

A  deed  which  is  absolute  on  its 
face  cannot  by  parol  evidence  be 
varied  into  one  of  trust,  unless  there 
was  fraud,  accident  or  mistake. 
Jones  v.  Van  Doren,  18  Fed.  Rep. 
619;  Mescall  v.  Tully,  91  Ind.  96; 
Morall  v.  Waterson,  7  Kan.  199; 
Pillsbury-Washburn  Flour-Mills 
Co.  r.  Kistler,  53  Minn.  123,  54 
N.  W.  Rep.  1063;  Salisbury  v. 
Clarke,  61  Vt.  453, 17  Atl.  Rep.  135. 

An  express  trust  cannot  be  en- 
grafted upon  a  deed  absolute  in 
form  by  parol  evidence.  Louis- 
ville, etc.,  R.  Co.  v.  Ramsay,  134 
Ga.  107,  67  S.  E.  Rep.  652;  Veasey 


638 


ACTIONS   BY   AND    AGAINST   TRUSTEES 


particular  form  of  words  is  necessary.  It  is  enough  if  the 
creator,  having  the  property,  conveys  it  to  another  in  trust,67 
or  admits  the  trust  in  a  writing,  whether  addressed  to  the 
cestui  que  trust  or  to  a  third  person,68  or,  the  property  being 
personal,  if  he  unequivocally  declares  either  orally  or  in 
writing,  that 'he  holds  it  in  prcesenti  in  trust,  or  as  a  trustee 
for  another; 69  and  the  creation  of  a  trust  hi  writing,  if  other- 
wise unequivocal,  is  not  affected  by  the  fact  that  the  creator 
of  the  trust  retains  the  instrument  declaring  it.70  Knowl- 


v.  Veasey,  110  Ark.  389,  162  S.  W. 
Rep.  45;  Ryder  v.  Ryder,  244  111. 
297,  91  N.  E.  Rep.  451. 

If  parol  evidence  is  admitted 
for  the  purpose  of  establishing  a 
trust  it  must  also  be  admitted  for 
the  purpose  of  defeating  it.  New- 
hall  v.  Le  Breton,  119  U.  S.  259, 
7  Sup.  Ct.  225,  30  L.  Ed.  381. 

Parol  evidence  to  prove  a  trust 
must  be  received  with  great  cau- 
tion. Cooper  v.  Skeel,  14  Iowa, 
578. 

a  Ray  ».  Simmons,  11  R.  I.  266, 
s.  c.,  23  Am.  Rep.  447,  and  cases 
cited. 

"No  particular  words  are  neces- 
sary to  create  a  trust,  and  trust 
relations  will  be  implied  when  it 
appears  that  such  was  the  inten- 
tion." Stone  v.  National  City  Bank, 
126  Md.  231,  94  Atl.  Rep.  657. 
See  also  Rousseau  v.  Call,  169  N.  C. 
173,  85  S.  E.  Rep.  414. 

68  Any  writing  may  be  used  for 
the  purpose,  though  not  intended 
as  a  declaration  of  trust.  Kings- 
bury  v.  Burnside,  58  111.  310,  s.  c., 
11  Am.  Rep.  67.  Thus,  admissions 
in  a  pleading  in  an  action  with 
third  persons  will  be  sufficient. 
Cook  v.  Barr,  44  N.  Y.  156. 


It  was  held  that  a  valid  trust 
was  created  by  a  will  which  pro- 
vided that  property  should  be 
held  in  trust  for  the  maintenance 
and  support  of  the  testator's  son, 
free  from  all  attacks  by  the  latter's 
creditor,  and  that  it  should  be 
conveyed  to  the  son  whenever  he 
became  free  and  clear  of  all  his 
indebtedness.  Siemers  v.  Morris, 
169  App.  Div.  411, 154  N.  Y.  Supp. 
1001. 

69  See  Walker  v.  Walker,  9  Wall. 
754. 

A  trust  may  be  created  by  parol 
where  the  subject  matter  is  per- 
sonal property.  Holbrook  v.  Fyffe, 
164  Ky.  435,  175  S.  W.  Rep. 
977;  Stone  v.  National  City  Bank, 
126  Md.  231,  94  Atl.  Rep. 
657. 

A  trust  in  personalty  may  be 
created  by  parol  and  will  be  recog- 
nized when  the  purpose,  i.  e.,  the 
disposition  of  the  property,  and 
the  beneficiaries  are  designated 
with  reasonable  certainty.  Rous- 
seau v.  Call,  169  N.  C.  173,  85 
S.  E.  Rep.  414. 

70  Especially    where    he    himself 
is  the  trustee.     Ray  v.  Simmons, 
11  R.  I.  266,  s.  c.,  23  Am.  Rep.  447, 


ACTIONS   BY   AND   AGAINST   TRUSTEES 


639 


edge  in  the  cestui  que  trust,  at  the  time,  need  not  be  proved. 
If  the  writing  in  which  the  parties  embodied  the  declaration 
is  clear  and  positive  as  to  the  terms  of  the  trust,  it  cannot 
be  varied  or  altered  by  parol  evidence,71  but  if  loose  and  am- 
biguous, parol  evidence  is  competent  to  show  what  was  their 
understanding.72  In  ascertaining  the  purposes  of  a  trust, 
the  language  of  the  conveyance,  if  clear  and  unequivocal, 
is  conclusive.73  If  the  language  is  indefinite,  extrinsic  evi- 


and  cases  cited;  Witzel  v.  Chapin, 
3  Bradf .  386. 

Declarations  and  statements 
made  by  the  creator  of  a  trust 
after  it  has  been  carried  out  are 
not  competent  to  vary  the  terms 
of  the  trust,  unless  such  statements 
were  made  in  the  presence  of  or 
•with  the  knowledge  and  consent 
of  the  beneficiaries.  Richardson 
v.  Adams,  171  Mass.  447,  50  N.  E. 
Rep.  941. 

71  Steere  v.  Steere,  5  Johns.  Ch.  1. 
So  held  even  where  the  writings 
were  merely  accounts  and  letters. 
Compare  Brabrook  v.  Boston  Five 
Cents  Savings  Bank,  104  Mass. 
228,  s.  c.,  6  Am.  Rep.  222. 

A  trust  deed,  which  is  free  from 
ambiguity  cannot  be  varied  or 
controlled  by  extrinsic  evidence. 
Crawford  v.  Nies,  224  Mass.  474, 
113  N.  E.  Rep.  408. 

But  see  Shield  v.  Adkins,  117 
Va.  616,  85  S.  E.  Rep.  492,  where 
it  was  held  that  an  express  trust 
with  respect  to  real  estate  could  be 
created  by  parol,  and  therefore 
the  rule  forbidding  the  admission 
of  parol  evidence  to  vary,  con- 
tradict, add1  to,  or  explain  the 
terms  of  a  written  instrument 
did  not  apply. 

"Steere  v.  Steere  (above).    The 


tendency  of  later  decisions  is  to 
insist  on  clear  and  cogent  evidence. 
See  Lantry  t>.  Lantry,  51  111.  458, 
s.  c.,  1  Am.  Rep.  310,  and  U.  S. 
Dig.  tit.  Trust. 

One  who  seeks  to  read  a  parol 
trust  into  a  deed  has  the  burden  of 
proof  thereof.  Neyland  v.  Bendy, 
69  Tex.  711,  7  S.  W.  Rep.  497. 

Parol  evidence  to  impress  ,a 
trust  upon  a  deed  which  is  abso- 
lute on  its  face  must  be  clear  and 
cogent.  Henslee  v.  Henslee,  5  Tex. 
Civ.  App.  367,  24  S.  W.  Rep.  321; 
McFarland  v.  La  Force,  119  Mo. 
585,  25  S.  W.  Rep.  520,  27  S.  W. 
Rep.  1100. 

"Miller  v.  Gable,  2  Den.  492, 
548. 

If  a  trust  deed  is  ever  actually 
delivered  to  a  grantee,  the  rights 
of  the  cestuis  que  trustent  attach, 
and  the  effect  of  the  delivery  can- 
not be  impaired  by  any  mental 
reservation,  or  any  oral  condition 
attached  to  the  delivery,  which 
would  be  repugnant  to  the  terms 
of  the  deed.  Wallace  v.  Berdell, 
97  N.  Y.  13. 

Clear  and  convincing  proof  is 
necessary  to  establish  a  trust  in  a 
husband  in  the  property  of  his 
deceased  wife,  after  the  death  of 
both,  based  upon  an  oral  agree- 


640 


ACTIONS   BY   AND   AGAINST   TRUSTEES 


dence,  such  as  the  tenets  held  by  the  donor,  or  the  faith  then 
actually  taught  by  the  donees,  and  the  circumstances  under 
which  the  gift  was  made,  and  the  denominational  name  of  a 
religious  corporation  or  society  to  which  a  donation  is  made, 
and  the  doctrines  actually  taught  therein  at  the  time  of  the 
gift,  may  be  resorted  to  hi  order  to  limit  and  define  the 
trust  in  respect  to  doctrines  usually  considered  fundamental, 
but  not  as  to  lesser  shades  or  points  of  doctrine  not  deemed 
fundamental.74  To  prove  the  acceptance  of  a  trust,  any  act 
of  the  trustees  under  the  instrument  creating  the  trust  is 
competent  evidence.75  Parol  evidence  is  equally  competent 


ment  between  them.  Townsend 
v.  Crowner,  125  N.  Y.  Supp.  329. 

A  bank  book  designating  the 
depositor  as  trustee  for  another  is 
not  conclusive  proof  of  a  trust. 
Parkman  v.  Suffolk  Sav.  Bk.,  151 
Mass.  218,  24  N.  E.  Rep.  43. 

Where  the  instrument  by  which 
a  trust  is  sought  to  be  established 
is  insufficient,  parol  evidence  can- 
not be  introduced  in  aid  of  it. 
Kimball  v.  De  Grauw,  9  N.  Y. 
St.  Rep.  339;  Dyer's  App.,  107 
Pa.  446. 

A  trust  in  personal  property 
may  be  established  by  circumstan- 
tial evidence.  .Gadsden  v.  Whaley, 
14  S.  C.  210;  Lamb  v.  Girtman,  26 
Ga.  625. 

74  Hale  v.  Everett,  53  N.  H.  9, 
s.  c.,  16  Am.  Rep.  82.  Compare 
Happy  v.  Morton,  33  111.  398,  413; 
see  also,  rules  as  to  extrinsic  evi- 
dence to  interpret  wills,  chapter  V, 
paragraphs  81-116,  of  this  vol. 

Where  the  donor  subsequently 
claims  that  the  trust  was  to  be 
binding  in  only  certain  contingen- 
cies he  has  the  burden  of  proving 
it.  Irvine  v.  Dunham,  111  U.  S. 


327,  4  Sup.  Ct.  501,  28  L.  Ed. 
444. 

75  Lewis  v.  Baird,  3  McLean,  56; 
and  see  3  Wms.  Exr.  6  Am.  ed. 
1896,  and  note. 

"The  general  rule  is  that  every 
voluntary  interference  with  the 
trust  property  will  stamp  a  person 
as  an  acting  trustee,  unless  such 
interference  can  be  plainly  re- 
ferred to  some  other  ground  of  ac- 
tion than  the  acceptance  of  the 
trust."  1  Perry  on  Trusts,  §  261, 
quoted  in  Kennedy  v.  Winn,  80 
Ala.  165. 

Where  a  party  either  with  or 
without  his  consent,  was  appointed 
as  trustee  with  notice  of  the  trust, 
and  thereafter  voluntarily  so  acted 
with  respect  to  the  trust  fund  that 
his  dealings  therewith  could  not  be 
accounted  for  in  any  other  light 
than  as  trustee,  it  was  held  that  he 
would  be  conclusively  presumed 
to  have  accepted  the  trust.  Free- 
man v.  Brown,  115  Ga.  23,  41  S.  E. 
Rep.  385. 

Where  no  distinction  was  made 
by  a  testator  between  executors 
and  trustees  and  property  was  de- 


ACTIONS    BY    AND    AGAINST    TRUSTEES 


641 


to  disprove  acceptance  by  the  one  named  as  trustee,  or  by 
one  of  several  so  named.76  But  if  it  was  accepted,  though 
for  a  moment,  parol  proof  of  a  release  is  not  competent.77 
Where  the  action  is  not  against  the  trustee,  but  brought 
by  him  against  those  who  have  dealt  with  him,  or  strangers, 
much  slighter  evidence  is  enough  to  show  him  a  trustee  of  an 
express  trust  within  the  statute  allowing  such  an  one  to  sue 
in  his  own  name.78 


vised  to  the  executors  to  be  held 
in  trust,  the  latter  were  held  to  have 
accepted  the  trust  by  accepting 
and  qualifying  as  executors  under 
the  will.  Rowe  v.  Howe,  103  App. 
Div.  100,  92  N.  Y.  Supp.  491. 

The  fact  that  executors  under  a 
will  which  set  aside  a  sum  of  money 
for  the  benefit  and  support  of  an 
incompetent  gave  their  receipt  for 
this  money  was  held  to  constitute 
an  acceptance  of  the  trust.  Eliz- 
alde  v.  Elizalde,  137  Cal.  634,  66 
Pac.  Rep.  369,  70  Pac.  Rep.  861. 

76  Armstrong  v.  Morrill,  14  Wall. 
139;  Burritt  v.  Silleman,  13  N.  Y. 
93,  rev'g  16  Barb.  198. 

See  Perry  on  Trusts  and  Trustees 
(6th  Ed.),  Ch.  IX,  §270. 

77  Id.  and  cases  cited. 

"An  oral  declaration  of  an  in- 
tention not  to  accept  a  trust,  made 
contemporaneously,  would  not  de- 
feat an  express  acceptance  in  writ- 
ing, unless  shown  to  have  been 
procured  by  fraud  or  surprise." 
And  the  giving  of  a  receipt  is, 
in  legal  effect,  the  equivalent  of  an 
express  acceptance  which  an  ad- 
verse parol  disclaimer  would  not 
obviate.  Kennedy  v.  Winn,  80 
Ala,  165. 

78  Any  declaration,  however  in- 
formal, which  evinces  the  intention 


of  the  party  with  sufficient  clear- 
ness, will  have  that  effect  as  to 
personalty.  Chew  v.  Brumagen, 
13  Wall.  497,  and  cases  cited. 

See  also  West  v.  Crawford,  80 
Cal.  19,  21  Pac.  Rep.  1123. 

An  agent  of  an  undisclosed  prin- 
cipal was  allowed  to  maintain  an 
action  in  his  own  name.  Holliston 
v.  Ernston,  124  Minn.  49,  144  N. 
W.  Rep.  415;  Higgins  v.  Sowards 
159  Ky.  783,  169  S.  E.  Rep.  554. 

By  §  449  of  the  N.  Y.  Code  of 
Civil  Procedure,  it  is  provided 
that  "every  action  must  be  prose- 
cuted in  the  name  of  the  real 
party  in  interest,  except  ...  a 
trustee  of  an  express  trust  .  .  . 
may  sue  without  joining  with  him 
the  person  for  whose  benefit  the 
action  is  prosecuted.  A  person, 
with  whom  or  in  whose  name,  a 
contract  is  made  for  the  benefit 
of  another,  is  a  trustee  of  an  ex- 
press trust,  within  the  meaning  of 
this  section." 

An  insured,  whose  children  were 
his  beneficiaries,  brought  an  action 
to  reform  the  contract  of  insurance. 
The  beneficiaries  assigned  all  their 
interests  and  rights  to  their  mother. 
It  was  held  that  the  insured,  under 
§449  of  the  Code  of  Civil  Proce- 
dure, was  the  trustee  of  an  express 


t>42  ACTIONS   BY   AND   AGAINST   TRUSTEES 

2.  Demand  before  Suit,  and  Notice. 

Before  a  suit  can  be  brought  against  a  trustee,  he  must 
have  had  notice  of  the  duty  he  is  required  to  perform,  and 
must  have  had  an  opportunity  to  perform  it. 

But  where  the  trustee  is  himself  an  actor  in  the  transaction, 
and  has  full  knowledge  of  his  duties,  such  notice  and  de- 
mand are  not  required.79  If  there  are  several  trustees,  a  de- 
mand on  the  one  against  whom  personal  recovery  is  sought 
should  be  proved.80  Where  the  trustees  are  not  chosen  by 
nor  the  agents  of  the  cestui  que  trust,  notice  to  one  of  several 
co-trustees  is  not  notice  to  the  cestui  que  trust  for  the  purpose 
of  depriving  him  of  the  character  of  bona  fide  holder.81 

3.  Trustees'  Receipts. 

All  of  several  trustees  of  an  express  trust  must  join  in 
receipts,  conveyances  and  actions,82  and  the  receipt  of  one 
is  not  alone  competent  evidence  to  charge  or  bar  the  others. 
If  two  trustees  join  in  a  receipt  for  money,  it  is  presumptive 
evidence  that  the  money  came  equally  into  the  possession 
or  under  the  control  of  both;  and  there  must  be  direct  and 
positive  proof  to  rebut  the  presumption.83  In  such  case  the 
burden  is  on  the  trustee  to  prove  that  his  acknowledgment 
of  the  receipt  of  the  money  was  merely  for  conformity,  and 
that  in  fact  he  received  none  of  the  money,  and  that  his  co- 
trustee  received  it  all.  If  there  is  no  evidence  upon  this 
point,  all  the  trustees  who  join  in  signing  the  receipt  will 
be  held  responsible  in  solido,  on  the  ground  that  the  acknowl- 
edgment in  the  receipt  is  prima  facie  evidence  of  the  facts 
stated.  At  common  law  the  receipt  was  conclusive,  and  es- 
topped the  trustee  from  denying  that  he  received  any  of  the 

trust.  Hunt  v.  Provident  Savings  81  Commissioners  of  Johnson 

Life  Assur.  Society,  77  App.  Div.  County  v.  Thayer,  94  U.  S.  (4 

338,  79  N.  Y.  Supp.  74.  Otto)  631,  644. 

"Brent  ».  Maryland,  18  Wall.  826  Abb.  N.  Y.  Dig.  25, 

430,  and  cases  cited.  35. 

80  Jessop  0.  Miller,  2  Abb.  Ct.  M  Monell  v.  Monell,  5  Johns.  Ch. 

App.  Dec.  449.  283. 


ACTIONS   BY   AND    AGAINST   TRUSTEES 


643 


money;  but  equity  rejects  the  estoppel,  and  will  determine 
according  to  the  fact.  But  if  a  trustee,  signing  a  receipt, 
receives  any  part  of  the  money,  and  it  does  not  appear  how 
much,  he  will  be  answerable  for  the  whole.84 

4.  Compromises. 

If  the  trustee  has  compromised  a  claim,  without  leave  of 
court  had  on  notice  to  the  cestui  que  trust?*  the  burden  is 
on  him  of  showing  that  by  the  situation  existing  at  the  time 
he  made  the  compromise,  it  was  properly  judged  advantage- 
ous for  the  estate.86  If  he  shows  this  he  is  not  made  liable  by 
the  result's  proving  disadvantageous.87  If  he  obtained  leave 
under  a  statute  authorizing  the  court  to  grant  it,  and  not 
requiring  notice,  or  under  the  general  power  of  a  court  of 
equity  to  direct  a  trustee,  on  notice  to  the  cestui  que  trust,ss 
the  order  of  the  court  protects  him89  irrespective  of  the 


84  2  Perry  on  Trusts,  501,  §416. 

Where  the  consideration  in  a 
deed  by  a  trustee  is  stated  to  be 
$12,500,  he  will  be  held  accountable 
for  such  amount  unless  he  can 
prove  that  a  less  amount  was  re- 
ceived. Smith  v.  Perry,  197  Mo. 
438,  95  S.  W.  Rep.  337. 

If  in  violation  of  his  duty  a 
trustee  continues  a  business  in- 
stead of  winding  it  up,  the  burden 
is  upon  the  cestuis  who  claim  the 
profits  of  such  continuance  of  the 
business  to  show  the  amount  of 
the  profits.  Matter  of  U.  S.  Mort- 
gage, etc.,  Co.,  114  N.  Y.  App.  Div. 
532,  100  N.  Y.  Supp.  12,  19  N.  Y. 
Ann.  Cas.  111. 

In  order  to  show  whether  prop- 
erty was  purchased  with  trust 
funds  it  is  competent  to  produce 
evidence  as  to  the  financial  condi- 
tion of  the  purchaser.  Gale  v. 
Harby,  20  Fla.  171. 


86  Sollee  v.  Croft,  7  Rich.  Eq.  34, 
43, 45;  Anon  v.  Gelpcke,  5  Hun  245. 

88  "The  Chancellor  is  the  only 
safe  and  secure  counsellor  to 
trustees."  NASH,  J.,  Freeman  v. 
Cook,  6  Ired.  Eq.  (N.  C.)  373, 
378. 

87  Murray  v.  Blatchford,  1  Wend. 
583,   616;   Bacot   ».    Hayward,   5 
Rich.  (S.  C.)  441. 

88  If  the  court  has  equity  powers 
only  by  express  statute,  the  rule 
is  the  same.    Tread  well  v.  Cordis,  5 
Gray  341. 

89  Alike  on  the  compromise  of  a 
legal  (Talbot  v.  Earl  of  Radnor, 
3  Mylne  &  K.   252;  Wheeler  v. 
Perry,  18  N.  H.  307)  as  of  an  equi- 
table claim.     Jones  v.  Stockett,  2 
Bland  Ch.  (Md.)  409,  425. 

The  burden  of  proof  is  upon  the 
trustee  to  show  the  justification 
for  encroaching  upon  the  principal 
amount  of  the  trust.  Green  o. 


044 


ACTIONS   BY   AND    AGAINST   TRUSTEES 


result,  and  throws  upon  a  cestui  que  trust  who  assails 
the  compromise,  the  burden  of  proving  fraud  or  bad 
faith. 

6.  Justification  of  Dealings  with  the  Estate. 

If  a  trustee  purchases  of  the  cestui  que  trust,  or  accepts  a 
benefit  from  him,  the  burden  is  on  the  trustee  to  vindicate 
the  transaction  from  any  shadow  of  suspicion,  and  to  show 
that  it  was  perfectly  fair  and  reasonable  in  every  respect.90 
If  he  alleges  the  consent  of  the  cestui  que  trust,  the  presump- 
tion is  against  the  fairness  of  the  transaction,  and  the  burden 
is  on  him  to  show  it  affirmatively,  and  to  establish  all  the 
conditions  necessary  to  its  validity.91  If  the  trustee  deals 
with  the  trust  fund  for  his  own  benefit,  the  cestui  que  trust, 
on  calling  him  to  account,  need  not  show  that  there  was  any 


Wooldridge,  89  Va.  632,  16  S.  E. 
Rep.  875. 

M  2  Perry  on  Trusts,  516,  §  428. 
Held  otherwise  where  the  trustee 
acts  in  the  hostile  attitude  of  an 
urgent  creditor.  11  Moak's  Eng. 
112,  note. 

The  trustee  has  the  burden  of 
proving  that  he  has  complied  with 
all  equitable  requirements,  where 
he  obtains  a  benefit  from  a  trust 
transaction.  Clough  v.  Dawson, 
69  Ore.  52,  133  Pac.  Rep.  345,  138 
Pac.  Rep.  233. 

Where  one  removes  trust  funds 
out  of  the  state  the  court  may 
apply  the  presumption  in  odium 
spoliatoris  and  draw  any  fair  in- 
ferences and  not  permit  the  wrong- 
doer to  profit  from  his  fraud.  Mc- 
Crum  v.  Lee,  38  W.  Va.  583,  18 
S.  E.  Rep.  757. 

Where  a  trustee  drew  a  check 
on  trust  funds  to  the  order  of  his 
wife,  nothing  else  appearing,  the 


presumption  is  that  the  check  was 
given  in  payment  of  a  debt  from 
the  trust  estate.  Nay  v.  Curley, 
113  N.  Y.  575,  21  N.  E.  Rep.  698. 

In  an  action  to  compel  a  trustee 
to  account,  it  was  held  that  he  had 
the  burden  of  proving  his  con- 
tention that  the  cestui  que  trust  had 
loaned  him  a  sum  of  money,  thus 
changing  their  relations  to  that 
of  debtor  and  creditor.  Walker's 
App.,  140  Pa.  St.  124,  21  Atl. 
Rep.  311. 

91  Cumberland  Coal  Co.  v.  Sher- 
man, 30  Barb.  553,  572. 

"The  burden  rests  upon  a  trustee 
seeking  to  sustain  a  business 
transaction  with  his  cestui  que 
trust  to  show  not  simply  that  it 
has  been  free  from  any  affirma- 
tive actual  fraud,  but  that  it  has 
been  entered  upon  knowingly  and 
intelligently  and  is  fair  and  equi- 
table." Smith  v.  Howlett,  21  Misc. 
386,  390,  47  N.  Y.  Supp.  1002. 


ACTIONS   BY   AND    AGATNST   TRUSTEES 


645 


inequality  or  disadvantage  in  the  transaction.92  He  is  ab- 
solutely entitled  to  have  it  set  aside,  unless,  being  sui  juris, 
he  has  ratified  the  act  or  waived  the  objection.93  Silent 
acquiescence,  without  facts  constituting  an  estoppel,  does 
not  affect  the  right  of  action,94  unless  unreasonably  pro- 
longed.95 

6.  Admissions  and  Declarations  of  the  Cestui  Que  Trust. 
To  let  hi  the  admissions  and  declarations  of  the  cestui 
que  trust  against  the  trustee,  being  the  party  on  the  record, 
it  must  clearly  appear  that  the  action  is  brought  for  the 
benefit  of  the  declarant  or  those  claiming  under  him.96  The 
admissions  of  one  of  several  cestuis  que  trustent  in  a  formal 
trust  are  not  generally  competent  for  the  purpose  of  defeat- 
ing the  title  of  trustee,  especially  in  an  express  trust  of 
real  property.97  But  where  the  cestuis  que  trustent  are  really 
principals,  their  admissions  are  competent,  and  their  rela- 


92Jewett  v.  Miller,  10  N.  Y. 
402. 

"No  actual  fraud  need  be  shown 
on  the  part  of  a  trustee,  to  make 
him  personally  liable,  where  he 
deals  for  his  own  benefit  with  the 
trust  funds."  And  in  this  case  a 
general  guardian  and  his  ward  were 
held  to  come  within  the  rule  enun- 
ciated. Matter  of  Terry,  31  Misc. 
477,  65  N.  Y.  Supp.  655. 

93  Boerum  v.  Schenck,  41  Id. 
182. 

A  trustee  because  of  his  relation 
to  the  trust  property  could  not, 
it  was  held,  purchase  the  same  on 
his  own  account;  but  where  he  did 
so,  the  cestui  que  trust  could  either 
ratify  the  purchase  and  hold  the 
trustee  for  any  excess  of  the  value 
of  the  property  over  his  purchase 
price,  or  he  could  have  the  sale 
set  aside  and  return  to  the  trustee 


the  amount  paid  on  the  purchase. 
Archer  v.  Archer,  164  App.  Div. 
81,  149  N.  Y.  Supp.  426. 

94 14  Moak's  Eng.  85,  note. 
Contra,  15  Id.  19. 

95  Twin-lick    Oil    Co.    v.    Mar- 
bury,  91  U.  S.  (1  Otto)  587. 

Granting  that  a  corporation  has 
the  right  to  impeach  a  trustee's 
purchase  of  its  property  at  a  re- 
ceiver's sale,  the  court  held  that 
the  shareholders  lost  this  right  by 
their  laches.  Buchler  v.  Black, 
226  Fed.  Rep.  703,  141  C.  C.  A. 
459.  See  also  Sunny  Brook  Zinc, 
etc.,  Co.  v.  Metzler,  231  Fed.  Rep. 
304. 

96  May  v.  Taylor,  7  JUT.  512,  s.  c., 
6  Mann.  &  G.  261,  6  Scott  N.  R. 
974. 

97  Pope   v.   Devereaux,   5   Gray 
(Mass.),  409, 413. 


646 


ACTIONS    BY    AND    AGAINST    TRUSTEES 


tion  may  involve  an  agency,  in  which  case  the  admissions  of 
one  will  be  competent  against  the  other. 

7.  Admissions  and  Declarations  of  the  Trustee. 

In  the  case  of  a  formal  express  trust  the  admissions  and 
declarations  of  a  sole  trustee,  if  made  while  he  was  trustee,98 
and  relating  to  matters  within  the  scope  of  his  duty  and  au- 
thority, are  competent  evidence  against  him  or  his  cestui  que 
trust,™  when  adduced  in  favor  of  third  persons.  If  his  trust 
partook  of  the  nature  of  an  agency,  his  admissions  and  dec- 
larations within  the  scope  of  the  agency  are  competent.  In 
any  case,  his  admissions  and  declarations  made  at  whatever 
time,  if  relevant  to  the  issue,  are  competent  evidence  against 
himself  personally.  If  there  are  several  co-trustees,  the  ad- 
missions of  one  are  competent  against  himself,  but  not 
against  his  co-trustee,1  nor,  alone,  against  their  cestui  que 
trust.2 


98  Beatty  v.  Davis,  9  Gill  (Md.), 
211. 

The  declarations  of  a  trustee 
are  competent  as  to  the  purposes 
of  the  trust.  Drew  v.  Corliss,  65 
Vt.  650,  27  Atl.  Rep.  613. 

99  Maxwell  v.  Harrison,  8  Geo.  61, 
67;    Helm    v.    Steele,    3    Humph. 
(Term.)  472.     Contra,  Graham  v. 
Lockhart,  8  Ala.  N.  S.  9;  2  Perry 
on  Trusts,  522,  §433;  Thomas  v. 
Bowman,  30  111.  84,  29  Id.  426. 
Compare  Thompson  v.  Drake,  32 
Ala.  99. 

The  acts  and  declarations  of  a 
trustee  in  reference  to  the  trust 
may  be  considered  by  the  jury 
together  with  all  the  surrounding 
circumstances  of  the  trust  agree- 
ment where  the  action  is  brought 
to  establish  the  trust.  Haxton  v. 
McClaren,  132  Ind.  235,  31  N.  E. 
Rep.  48. 


1  Davies  v.  Ridge,  3  Esp.  101. 

2  Walker  v.  Dunspaugh,  20  N.  Y. 
170.     If  a  father  deposits  money 
in  bank  in  the  name  of  his  son, 
designating     himself     as     trustee, 
his    subsequent    declarations    are 
not  admissible  for  the  purpose  of 
showing  that  he  did  not  intend  to 
create  a  trust  in  favor  of  his  son. 
Connecticut    River    Sav.    Bk.    v. 
Albee,  64  Vt.  571,  33  Am.  St.  Rep. 
944,  25  Atl.  Rep.  487. 

A  trustee  cannot  make  any  ad- 
mission to  the  prejudice  of  the 
trust  fund  and  against  the  cestui 
que  trust.  Bragg  v.  Geddes  et  al., 
93  111.  39. 

•  An  unsigned  written  statement, 
partly  in  the  trustee's  own  hand- 
writing, which  apparently  was  an 
inventory  of  the  trust  estate,  was 
held  admissible  to  charge  his  es- 
tate as  a  declaration  against  in- 


ACTIONS    BY   AND    AGAINST   TRUSTEES  647 

8.  Judgments. 

A  judgment  or  verdict  against  one  individually  does  not 
estop  him  as  trustee.3  But  an  adjudication  against  him  as 
trustee  estops  him  in  respect  to  his  private  right  as  a  cestui 
que  trust  held  at  the  time  of  the  former  action,  or  acquired 
from  persons  then  holding  it.4  An  adjudication  against 
him  in  the  capacity  of  trustee  does  not  estop  him  from  bring- 
ing, as  trustee  for  a  different  purpose,  or  in  a  different  right, 
another  action  against  the  same  defendant,  and  hence  it 
does  not  estop  the  defendant  in  favor  of  the  trustee.5 

9.  Presumption  of  Conveyance  by  Trustee. 

A  presumption  of  fact  that  a  conveyance  has  been  made 
by  a  trustee  to  those  entitled  to  a  conveyance,  in  conformity 
to  the  trust,  arises  after  a  considerable  lapse  of  tune.6  So 
where  the  object  of  a  trust  has  entirely  failed,  a  reconveyance 
from  the  grantee-  to  the  grantor,  or  if  there  were  several, 
to  that  one  who  had  the  exclusive  beneficial  right,  will  be 
presumed,  both  in  equity  and  at  law.7  Three  things  must 

terest,   although,   in   order   to   be  Fisher  v.   Johnson,   90  Misc.   46, 

binding   upon    the   estate    of   the  152  N.  Y.  Supp.  944,  947. 
cestui  que  trust,  it  was  necessary          See  also  Amsterdam  First  Nat. 

to  show  that  she  had,  in  some  way,  Bk.  v.  Shuler,  153  N.  Y.  173,  47 

acquiesced  in  it  as  an  inventory  N.  E.  Rep.  262,  60  Am.  St.  Rep. 

of  the  securities  constituting  the  601. 

trust  estate.     Putnam  v.  Lincoln          4  Corcoran  v.  Chesapeake,  etc., 

Safe  Deposit  Co.,  191  N.  Y.  166,  Canal  Co.,  94  U.  S.  (4  Otto)  741, 

185,  83  N.  E.  Rep.  789.  745. 

3  Rathbone  v.  Hooney,  58  N.  Y.          Where  suit  is  brought  against 

463.  one  as   trustee  judgment   cannot 

"A  suit  against  one  sued  as  an  be  obtained  against  him  individu- 

individual  does  not  bind  him  as  a  ally.     Vason  v.  Gardner,  70  Ga. 

trustee,  and,  conversely,  judgment  517. 

against  one  sued  in  a  representa-          6  Leggott    v.     Great     Northern 

tive   capacity   does   not   conclude  Railway  Co.,  1  Q.  B.  Div.  599, 

him  in  a  subsequent  action  brought  s.  c.,  17  Moak's  Eng.  238. 
by  or  against  him  as  an  individual,          6  See  Jackson  v.  Moore,  13  Johns, 

although  the  same  identical  issue  513;  Jackson  v.  Cole,  4  Cow.  587. 
is   involved,   and   the  decision  in          7Lade  v.  Holford,  Bull.   N.  P. 

the  first  action  was  on  the  merits.'-'  110;  England  v.  Slade,  4  T.  R.  682. 


(548 


ACTIONS   BY   AND    AGAINST   TRUSTEES 


occur  to  warrant  this  presumption:  1.  A  duty  on  the  part 
of  the  trustee  to  convey;  2.  A  reason  for  the  presumption, 
not  necessarily  sufficient  to  induce  conviction  of  a  convey- 
ance in  fact,  but  a  reason  of  justice;  3.  The  object  must  be 
the  support  of  a  just  title.  The  case  must  be  such  that  equity 
would  decree  a  conveyance.8  But  a  conveyance  which  would 
be  a  breach  of  their  trust  cannot  be  presumed,9  even  after 
great  lapse  of  time. 

10.  Constructive  and  Resulting  Trusts. 

Parol  evidence  is  competent  for  the  purpose  of  charging 
a  grantee  as  trustee  ex  maleficio,  or  as  a  constructive  trustee, 
where  the  application  of  the  statute  requiring  written  evi- 
dence would  operate  as  a  fraud.10  Evidence  of  a  parol  agree- 


8  French  v.  Edwards,  21  Wall. 
150. 

"Brewster  v.  Striker,  2  N.  Y. 
19,  affi'g  1  E.  D.  Smith,  321,  7 
N.  Y.  Leg.  Obs.  140. 

10  This  is  the  better  opinion  amid 
much  conflict  in  the  authorities. 
Dodge  v.  Wellman,  1  Abb.  Ct. 
App.  Dec.  512;  Ryan  v.  Dox,  34 
N.  Y.  307,  rev'g  25  Barb.  440;  Carr 
v.  Carr,  52  N.  Y.  251;  Sandford  v. 
Norris,  4  Abb.  Ct.  App.  Dec.  144. 

A  resulting  trust  may  be  proved 
by  parol.  Lofton  v.  Sterrett, 
23  Fla.  565,  2  So.  Rep.  837;  Hud- 
son v.  White,  17  R.  I.  519,  23  AtL 
Rep.  57;  Richardson  v.  Taylor, 
45  Ark.  472;  Seiler  v.  Mohn,  37 
W.  Va.  507,  16  S.  E.  Rep.  496; 
Polk  v.  Boggs,  122  Cal.  114,  54 
Pac.  Rep.  536;  Brooks  v.  Union 
Trust,  etc.,  Co.,  146  Cal.  134,  79 
Pac.  Rep.  843;  Booth  v.  Lenox, 
45  Fla.  191,  34  So.  Rep.  566. 

Parol  evidence  to  establish  a 
resulting  trust  must  be  clear  and 


undoubted.  Reynolds  v.  Cald- 
well,  80  Ala.  232;  Philpot  v.  Penn, 
91  Mo.  38,  3  S.  W.  Rep.  386; 
Logan  v.  Johnson,  72  Miss.  185, 
16  So.  Rep.  231;  Cottonwood 
County  Bk.  v.  Case,  25  S.  D.  77, 
125  N.  W.  Rep.  298. 

A  trust  ex  maleficio  can  only 
result  from  some  act  of  bad  faith, 
and  a  mere  refusal  to  perform  a 
parol  contract  to  hold  or  convey 
land  is  not  sufficient  to  create 
such  a  trust.  Braun  v.  First  Ger- 
man Evangelical  Lutheran  Church, 
198  Pa.  152,  47  Atl.  Rep.  963. 

Where  one  purchases  real  estate 
with  funds  of  another  and  takes 
title  in  his  own  name,  he  is  a 
trustee,  and  the  trust  may  be 
proved  by  parol  evidence.  Bran- 
stetter  v.  Mann,  6  Idaho,  580,  57 
Pac.  Rep.  433. 

Where  a  husband  purchases 
real  estate  in  his  wife's  name  the 
presumption  is  that  it  is  an  ad- 
vancement and  not  a  trust.  Deu- 


ACTIONS    BY   AND    AGAINST   TRUSTEES 


649 


ment  is  competent  to  show  that  defendant  made  advances 
and  took  title  to  plaintiff's  property  for  his  benefit  as  to  any 
surplus.  A  stranger  is  not  to  be  made  a  constructive  trustee 
merely  because  he  acts  as  agent  of  the  trustee.  It  should  be 
shown  that  he  received  and  became  chargeable  with  some 
part  of  the  trust  property,  or  knowingly  assisted  in  a  fraudu- 
lent transaction  on  the  part  of  the  trustee.11 

A  resulting  trust,  even  in  real  property,  in  the  cases  in 
which  the  statute  allows  such  trusts,12  may  be  proved  by 


terz.  Deuter,  214  111.  308,  73  N.  E. 
Rep.  453;  Rowe  v.  Johnson,  33  Colo. 
469, 81  Pac.  Rep.  268. 

Parol  evidence  was  held  com- 
petent to  show  that  one  who  took 
title  in  his  own  name  improperly 
refused  to  reconvey  to  the  plaintiff 
thus  establishing  a  constructive 
trust.  O'Brien  v.  O'Brien,  21 
Cal.  App.  620,  132  Pac.  Rep.  612. 

A  parol  agreement  by  a  legatee 
to  hold  in  trust  certain  personal 
property  received  under  a  will  was 
held  valid  and  parol  evidence  was 
competent  to  prove  such  oral 
trust.  People  v.  Schoefer,  266  111. 
334, 107  N.  E.  Rep.  617. 

In  May  v.  May,  161  Ky.  114, 
170  S.  W.  Rep.  537,  the  court  said 
that  though  a  constructive  trust 
could  be  established  by  parol 
evidence  such  proof  must  be  of 
the  strongest  and  most  convincing 
character. 

11  Barnes  v.  Addy,  L.  R.  9  Ch. 
App.  244,  s.  c.,  8  Moak's  Eng.  848. 

Constructive  trusts  "have  their 
roots  in  actual  or  legal  fraud,  and 
generally  arise  in  cases  when  there 
is  no  intention  to  create  a  trust." 
Alexander  v.  Spaulding,  160  Ind. 
176, 66  N.  E.  Rep.  694. 


In  Hart-op  v.  Cole,  85  N.  J.  Eq. 
32,  95  Atl.  Rep.  378,  it  was  held 
that,  where  an  agent  was  verbally 
commissioned  to  purchase  lands 
for  another,  and  in  violation  of 
his  agency,  took  title  thereto  in 
his  own  name,  paying  therefor 
with  his  own  money,  a  construc- 
tive trust  for  the  principal  would 
be  decreed. 

12  6  Abb.  N.  Y.  Dig.  10,  11. 

The  fraud  by  which  a  person 
buys  real  estate  in  his  own  name 
instead  of  in  that  of  his  principal 
is  not  provable  by  parol.  Barrow 
v.  Grant,  116  La.  952,  41  So.  Rep. 
220. 

Where  one  purchases  real  estate 
and  takes  title  in  the  name  of  an- 
other, the  acts  and  declarations 
of  the  parties  before  and  after  the 
transaction  are  admissible  to  re- 
but the  presumption  of  a  resulting 
trust.  Warren  v.  Steer,  112  Pa. 
634,  5  Atl.  Rep.  4. 

A  purchase  of  land  by  a  husband 
in  the  name  of  his  wife  will  be  pre- 
sumed to  be  an  advancement  and 
not  a  trust,  but  the  presumption 
may  be  rebutted.  McKey  v. 
Cochran,  262  111.  376,  104  N.  E. 
Rep.  693;  Shotwell  ».  Stickle, 


650 


ACTIONS   BY   AND   AGAINST   TRUSTEES 


parol  evidence  13  to  explain  a  conveyance  from  a  third  person. 
But  if  a  written  agreement  between  the  parties  appears, 
manifesting  an  intent  to  make  an  absolute  conveyance, 
parol  evidence  is  not  competent  between  them  to  prove  that 
a  trust  was  intended,  unless  fraud  or  mistake  is  shown;  14 


83  N.  J.  Eq.  188,  90  Atl.  Rep. 
246. 

When  a  husband  purchases  land 
and  takes  title  in  his  wife's  name 
the  presumption  is  that  it  is  a  gift, 
but  when  a  wife  purchases  and 
takes  title  in  her  husband's  name 
the  presumption  is  that  of  a  re- 
sulting trust.  Fagan  v.  Troutman, 
25  Colo.  App.  251,  138  Pac.  Rep. 
442,  rev'g  24  Colo.  App.  473,  135 
Pac.  Rep.  122. 

A  constructive  trust  is  estab- 
lished where  an  agent  who  is  hired 
to  purchase  land  for  his  principal 
takes  title  in  his  own  name;  it 
may  be  established  by  parol  evi- 
dence. Boswell  v.  Cunningham, 
32  Fla.  277,  13  So.  Rep.  354,  21 
L.  R.  A.  54. 

Where  a  corporation  seeks  to 
establish  a  trust  in  lands  purchased 
by  one  of  its  employees  with  money 
stolen  from  the  corporation,  it  is 
competent  to  show  that  the  prop- 
erty purchased  was  far  in  excess  of 
the  salary  paid  the  employee. 
New  York  &  B.  Ferry  Co.  v.  Moore, 
18  Abb.  N.  C.  106. 

1J  Swinburne  v.  Swinburne,  28 
X.  Y.  568.  The  statute  of  frauds 
does  not  apply.  6  Abb.  N.  Y.  Dig. 
8.  To  establish  a  resulting  trust 
pro  tanto  in  favor  of  one  claiming 
to  have  paid  a  part  of  the  purchase 
money  of  certain  land,  where  title 
was  taken  in  an  other,  it  is  incum- 


bent upon  the  former  to  show  by 
evidence  full,  clear  and  convincing 
what  part  of  the  purchase  price 
of  the  land  was  paid  by  him.  Cam- 
den  v.  Bennett,  64  Ark.  155,  41 
S.  W.  Rep.  854.  Under  the  statute 
of  frauds  the  existence  of  a  direct 
or  express  trust  in  lands  cannot 
be  established  by  parol:  but,  when 
there  is  some  written  evidence  of 
the  existence  of  a  trust,  parol 
evidence  is  admissible  to  show  the 
truth  and  nature  of  the  transaction. 
Johnson  v.  Calnan,  19  Col.  168, 
41  Am.  St.  Rep.  224,  34  Pac.  Rep. 
905. 

A  resulting  trust  in  land  may  be 
proved  by  oral  evidence.  Herri- 
ford  v.  Herriford,  78  Wash.  429, 
139  Pac.  Rep.  212. 

Parol  evidence  to  prove  a  re- 
sulting trust  must  be  clear  and 
convincing.  Berla  v.  Strauss,  74 
N.  J.  Eq.  678, 75  Atl.  Rep.  763. 

14  St.  John  v.  Benedict,  6  Johns. 
Ch.  Ill;  Sturtevant  v.  Sturtevant, 
20  N.  Y.  39. 

A  resulting  trust  may  be  proved 
by  the  declarations  of  the  one 
holding  the  nominal  title  made 
during  the  time  of  his  ownership. 
Traylor  v.  Hollis,  45  Ind.  App.  680, 
91  N.  E.  Rep.  567. 

The  declarations  of  a  grantee 
made  subsequent  to  the  taking  of 
title  are  not  admissible  to  estab- 
lish a  resulting  trust,  but  they  are 


ACTIONS   BY   AND   AGAINST   TRUSTEES 


651 


but  it  is  competent  for  the  purpose  of  proving  that  the  con- 
veyance was  a  mere  security.15  To  establish  a  resulting 
trust  by  plaintiff's  payment  of  the  consideration  for  a  title 
taken  by  defendant,  it  must  appear  that  the  consideration, 
or  a  definite  fractional  part,  was  paid  at  or  before  the  time  of 
the  conveyance.  Parol  proof  of  intent  to  pay  is  not  enough, 
nor  is  proof  of  subsequent  payment,  unless  in  pursuance  of  an 
agreement  made  at  or  before  the  time  of  conveyance.16 


competent  on  the  question  of  what 
he  agreed  to  do  at  the  time  the 
deed  was  delivered.  Cooney  v. 
Glynn,  157  Cal.  583,  108  Pac.  Rep. 
506. 

Where  a  father  purchases  land 
in  the  name  of  his  son  there  is  a 
presumption  that  it  was  an  ad- 
vancement to  the  son  which  can- 
not be  rebutted  by  showing  that 
the  father  had  the  conveyance 
made  to  the  son  for  a  fraudulent 
purpose.  McClintock  v.  Loisseau, 
31  W.  Va.  865,  8  S.  E.  Rep.  612, 
2  L.  R.  A.  816. 

"Even  though  there  was  no 
personal  debt.  Horn  v.  Keteltas, 
46  N.  Y.  605. 

Where  an  assignment  and  a  col- 
lateral agreement  to  reassign  did 
not  on  their  face  constitute  a 
mortgage,  it  was  held  that  in 
equity  the  plaintiff  could  show 
by  parol  that  the  assignment  was 
in  fact  given  as  security  for  a  debt. 
Reich  v.  Cochran,  213  N.  Y.  416, 
107  N.  E.  Rep.  1029. 

A  bill  of  sale,  absolute  on  its 


face,  could  be  shown  by  parol 
to  have  been  intended  merely  as 
security  for  the  payment  of  a  debt 
and  to  be  in  effect  a  mortgage. 
Sheldon  v.  McFee,  216  N.  Y.  618, 
111  N.  E.  Rep.  220. 

«  6  Abb.  N.  Y.  Dig.  8,  9. 

Where  a  deed  recites  a  consider- 
ation, want  of  consideration  can- 
not be  proved,  in  an  action  to  es- 
tablish a  resulting  trust.  Weiss  v. 
Heitkamp,  127  Mo.  23,  29  S.  W. 
Rep.  709. 

The  testimony  of  the  grantors  in 
a  deed  is  admissible  on  the  issue 
of  a  resulting  trust,  where  such 
testimony  shows  that  one  half  was 
held  in  trust.  Boyd  v.  Boyd,  163 
111.  611,  45  N.  E.  Rep.  118. 

In  order  to  impose  a  resulting 
trust  upon  land  to  the  extent  of 
the  consideration  paid,  the  exact 
amount  paid  and  the  total  con- 
sideration must  be  proved.  Wood- 
side  v.  Hewel,  109  Cal.  481,  42 
Pac.  Rep.  152;  Jones  v.  Hughey, 
46  S.  C.  193,  24  S.  E.  Rep. 
178. 


PART  II 

EVIDENCE  AFFECTING   PARTICULAR 
CAUSES   OF  ACTION 


CHAPTER  XII 


ACTIONS  FOR  MONEY  LENT 


1.  Grounds  of  action. 

2.  Delivery  of  money  not  enough. 

3.  Direct  testimony  to  loan. 

4.  Delivery  to  third  person. 

5.  To  which  of  several  was  credit 

given. 

6.  Request. 

7.  Authority  of  agent. 

8.  Parties  to  joint  adventure. 

9.  Joint  debtors. 

10.  Written  evidence. 

11.  Due  bill. 

12.  Defendant's  check  in  favor  of 

plaintiff. 


13.  Defendant's   check   drawn   on 

plaintiff. 

14.  Defendant's  receipt. 

15.  Plaintiff's  check. 

16.  Plaintiff's  account  books. 

17.  Character  in  which  the  parties 

dealt. 

18.  Connected  and  collateral  agree- 

ments. 

19.  Mortgage. 

20.  Medium  of  repayment. 

21.  Defenses — Disproof  of  loan. 

22.  —Illegality. 


1.  Grounds  of  Action. 

Under  modern  practice,  to  sustain  an  action  for  money 
lent,  an  actual  loan  should  be  proved;  that  is,  it  must  appear 
that  money  or  its  representative  n  passed  between  the  par- 
ties, or  was  advanced  by  plaintiff  to  a  third  person  on  the 


"Compare  Glyn  v.  Hertel,  8 
Taunt.  208;  Howard  v.  Danbury,  2 
C.  B.  803;  Litchfield  v.  Irwin,  51 
N.  Y.  51. 

Where  two  checks  are  exchanged, 
one  of  which  is  honored  and  the 
other  not,  an  action  for  money  lent 
will  lie  against  the  party  receiving 
the  money.  Beal  v.  American 


Diamond  Rock  Boring  Co.,  16 
N.  Y.  Misc.  540,  38  N.  Y.  Supp. 
743. 

Where  the  plaintiff  loans  his 
check  to  the  defendant  who  treats 
and  uses  it  as  money,  the  defend- 
ant is  chargeable  for  it  as  money 
loaned  even  though  there  were  not 
funds  enough  in  the  bank  to  meet 

653 


654 


ACTIONS   FOR   MONEY    LENT 


request  of  defendant,  and  on  his  express  or  implied  promise 
to  repay  it.18 

2.  Delivery  of  Money  not  Enough. 

Proof  of  the  delivery  by  plaintiff  of  money  or  checks  to  the 
defendant  is  not  enough  without  something  to  characterize 
the  act  as  a  loan.19  Delivery  of  money  is  presumed,  in  the 


the  check  when  presented.  Hilliard 
».  Bothell,  64  N.  H.  313,  8  Atl. 
Rep.  826;  Currier  v.  Davis,  111 
Mass.  480. 

18  At  common  law  a  count  for 
money  lent  was  often  sustained  by 
proof  of  a  note  in  the  hands  of  an 
indorsee,  or  by  other  evidence  not 
showing  a  loan  between  the  par- 
ties. Under  the  Code  the  ques- 
tion is,  does  the  pleading  correctly 
state  the  essential  legal  elements 
in  the  transaction;  and  if  there  be 
a  variance,  has  defendant  been 
misled  to  his  prejudice.  See 
Briggs  T.  Vanderbilt,  19  Barb.  222; 
and  paragraph  10  (below). 

The  essential  allegations  of  the 
complaint  in  an  action  for  money 
loaned  are  (1)  the  loan,  (2)  the 
promise  to  repay,  and  (3)  non- 
payment. If  no  agreement  is  al- 
leged as  to  the  time  for  the  repay- 
ment of  the  loan,  it  must  be  in- 
ferred that  the  loan  was  made,  as 
many  loans  are,  without  such  an 
agreement.  In  such  a  case  the 
loan  is  repayable  at  once,  or  when- 
ever the  lender  chooses  to  demand 
it,  and  the  case  is  not  one  in  which 
a  demand  must  be  made  before 
suit,  since  the  bringing  of  the  ac- 
tion is  itself  a  sufficient  demand. 
Wallach  v.  Dryfoos,  140  N.  Y. 
App.  Div.  438,  125  N.  Y.  Supp. 


305;  Clute  v.  McCrea,  1  N.  Y. 
Supp.  96;  Wagoner  v.  Wilson,  108 
Ind.  210,  8  N.  E.  Rep.  925. 

Where  there  is  no  express  con- 
tract to  repay  the  law  implies  one. 
Levy  v.  Gillis,  17  Del.  119,  39  Atl. 
Rep.  785. 

Where  one  man  loans  money  to 
another,  if  nothing  is  said  about 
the  time  of  payment,  the  presump- 
tion is  that  it  is  due  on  demand. 
Duke  v.  Southern  Hardware,  etc., 
Co.,  163  Ala.  477,  50  So.  Rep.  892. 

In  a  complaint  in  an  action  for 
money  loaned,  it  is  not  necessary 
to  allege  a  demand  of  payment; 
the  complaint  is  of  itself  a  demand. 
Samuels  v.  Larrimore,  11  Cal.  App. 
337,  104  Pac.  Rep.  1001. 

"Welch  v.  Seaborn,  1  Stark. 
474. 

A  check  is  not  prima  facie  evi- 
dence of  a  loan.  Morrow  v.  Frank- 
ish,  27  Del.  534,  89  Atl.  Rep.  740. 

The  giving  of  a  check  is  presump- 
tively the  payment  of  a  debt,  and 
to  raise  the  presumption  that  it 
was  a  loan  additional  proof  is  re- 
quired to  be  given.  Nay  v.  Cur- 
ley,  113  N.  Y.  575,  21  N.  E.  Rep. 
698. 

In  the  absence  of  explanation, 
the  presumption  arising  from  the 
delivery  of  a  check  is  that  it  was 
delivered  in  payment  of  a  debt  or 


ACTIONS    FOR   MONEY    LENT 


655 


absence  of  other  evidence,  to  be  in  payment  of  an  obliga- 
tion.20 But  very  slight  evidence  indicating  that  defendant 
received  it  as  a  borrower  is  enough  to  go  to  the  jury  and  sus- 
tain a  finding  that  the  transaction  was  a  loan.21 


else  was  a  gift  and  not  a  loan. 
Leask  v.  Hoagland,  205  N.  Y.  171, 
98  N.  E.  Rep.  395,  Ann.  Gas.  1913, 
D.  1199;  Levy  v.  Friedman,  83  N. 
Y.  Misc.  445,  145  N.  Y.  Supp.  89; 
RusseU  v.  Amlot,  132  N.  Y.  App. 
Div.  584,  116  N.  Y.  Supp.  1080; 
Kilmer  v.  Quackenbush,  125  N.  Y. 
App.  Div.  352,  109  N.  Y.  Supp. 
444;  Poucher  v.  Scott,  33  Hun  (N. 
Y.)  223,  affirmed  in  98  N.  Y.  422; 
Koehler  v.  Adler,  78  N.  Y.  287; 
Gutman  v.  Wolfsohn,  107  N.  Y. 
Supp.  546;  People  v.  Mershon,  43 
N.  Y.  App.  Div.  541,  60  N.  Y. 
Supp.  115. 

The  mere  showing  that  money 
was  remitted  by  check  does  not 
of  itself  create  a  presumption  that 
the  remittance  was  intended  as  a 
loan,  or  create  an  implied  promise 
on  the  part  of  the  recipient  to  re- 
pay the  money.  Pyle  v.  Starbird, 
72  Wash.  386,  130  Pac.  Rep.  477. 

20  Fleming's  Ex'r  v.  McLain,  13 
Penn.  St.  177,  and  cases  cited; 
Fish  v.  Davis,  62  Barb.  122;  Bo- 
gert  v.  Morse,  1  N.  Y.  377;  Sayles 
v.  Olmstead,  66  Barb.  590.  As  to 
the  evidence  of  distinction  be- 
tween a  loan  or  advancement,  see 
Chapter  V.,  paragraph  117,  of  this 
vol. 

When  one  delivers  a  sum  of 
money  to  another,  if  there  is  noth- 
ing else  to  explain  the  transaction, 
the  legal  presumption  is  that  the 
money  belonged  to  the  one  who 


received  it  and  not  that  he  thereby 
became  the  debtor  of  the  other'. 
Matter  of  Brown,  77  N.  Y.  Misc. 
507,  137  N.  Y.  Supp.  978;  Man- 
chester «.  Braedner,  107  N.  Y.  346; 
14  N.  E.  Rep.  405,  1  Am.  St.  Rep. 
829;  Matter  of  Delaney,  27  N.  Y. 
Misc.  398,  58  N.  Y.  Supp.  924. 

"Where  one  pays  money  or  de- 
livers a  check  for  money  to  an- 
other and  there  is  no  explanation 
of  the  cause  of  such  payment,  and 
if  business  relations  only  exist  be- 
tween the  parties,  the  ordinary  pre- 
sumption is  that  the  money  was 
paid  because  it  was  due  and  ow- 
ing." Miller  &  Graves  v.  Pratz, 
179  111.  App.  204.  See  also  Lowrey 
».  Robinson,  141  Pa.  St.  189,  21 
Atl.  Rep.  513. 

21  Thus  the  testimony  of  a  wit- 
ness that  defendant  several  times 
"got  money  and  checks"  of  plain- 
tiff's decedent,  is  not  enough  to 
sustain  a  verdict  that  they  were 
got  by  way  of  loan.  Fleming's 
Ex'r  v.  McLain  (above).  Nor  is 
the  admission  of  defendant  that 
"he  had  had  money"  of  the  plain- 
tiff. Bogert  v.  Morse  (above). 
But  where,  after  defendant  had 
made  such  admission  to  the  wit- 
ness, the  witness  said  plaintiff 
"told  me  to  speak  to  you  about 
it,"  and  defendant  turned  away 
without  replying,  this  was  held 
sufficient  evidence  that  it  was  a 
loan  to  sustain  the  verdict.  Id. 


656 


ACTIONS    FOR   MONEY    LENT 


3.  Direct  Testimony  to  Loan. 

A  witness  may  testify  directly  to  the  fact  that  he  lent, 
or  made  a  loan,22  subject  of  course  to  cross-examination  as 
to  the  details;  but  the  facts  being  brought  out,  the  opinion 
of  the  witness  is  not  competent  for  the  purpose  of  proving 
that  it  was  a  loan.  He  cannot  testify  that  he  "considered 
it"  such.23 


4.  Delivery  to  Third  Person. 

It  is  not  necessary  to  show  that  the  money  was  paid  into 
defendant's  hand.24  Proof  that  it  was  disbursed  as  he  di- 
rected will  suffice.  Thus  evidence  that  he,  being  indebted, 
requested  plaintiff  to  pay  the  creditor,  and  promised  if  he 
would  do  so  to  repay  him,  is  appropriate,25  although  it 


So  where  plaintiff  and  defendant 
were  at  the  races,  and  defendant 
having  lost  a  bet,  plaintiff  handed 
him  money  in  reply  to  his  request 
for  money,  a  verdict  finding  a 
loan  was  sustained.  Lawton  v. 
Sweeney,  8  Jur.  964.  As  to  evi- 
dence of  the  res  gestce  for  this  pur- 
pose, see  paragraph  15. 

The  plaintiff  refused  to  accept 
an  overdue  note  of  a  third  person 
as  security  for  a  loan  until  the  de- 
fendant had  promised  to  make  it 
good  if  the  maker  failed.  It  was 
held  that  the  defendent's  liability 
was  not  that  of  an  indorser  but 
that  of  one  receiving  a  loan,  and 
that  the  note  was  onty  collateral 
security.  Jonas  v.  Hughes,  64  Or. 
24,  128  Pac.  Rep.  998. 

In  Ball  v.  James,  158  N.  W.  Rep. 
(Iowa)  684,  it  was  held  that  the 
receipt  of  certain  money  gave  rise 
to  the  inference  that  an  offer  to 
lend  it  had  been  accepted. 

«  Cole  v.  Varner,  31  Ala.  244. 


The  plaintiff  was  held  to  have 
made  out  a  prima  facie  case  of 
money  lent  where  she  introduced 
in  evidence  her  check  drawn  to  the 
defendant's  order  and  collected 
by  him,  and  testified  that  she  gave 
the  money  as  a  loan  from  funds 
credited  to  her  by  the  bank  upon 
which  the  check  was  drawn.  Sie- 
brecht  v.  Siebrecht,  153  App.  Div. 
227,  137  N.  Y.  Supp.  1073. 

23Saltmarsh  v.  Bower,  34  Ala. 
613,  620. 

24  Wade  v.  Wilson,  1  East,  195. 

25  Hamilton  v.  Starkweather,  28 
Conn.  138. 

It  was  held  to  be  error  to  refuse 
to  admit  in  evidence  bills  of  a 
cable  company  which  had  been 
paid  by  the  company's  bank  as  if 
checks,  charged  to  the  latter 's  ac- 
count and  returned  to  the  company 
to  be  entered  in  its  books,  where 
it  appeared  that  the  company's 
general  manager  had  O.  K.'d  the 
bills  and  directed  the  holders 


ACTIONS    FOR   MONEY    LENT  657 

would  equally  well  sustain  in  action  for  money  paid  to  de- 
fendant's use.  So  money  paid  in  pursuance  of  defendant's 
request  to  pay  it  to  a  third  person,  or  his  request  to  advance 
such  sums  to  his  wife  as  she  might  call  for,  is  recoverable 
as  a  loan  to  defendant,  if  the  credit  was  given  to  him.26  But 
proof  of  a  loan  made  to  the  third  person  exclusively,  though 
at  the  request  of  the  defendant,  is  not  enough  to  sustain  an 
averment  of  a  loan  to  defendant.27 

5.  To  which  of  Several  was  Credit  Given. 

When  there  is  uncertainty  on  the  evidence  as  to  whether 
the  loan  proved  was  made  to  one  or  other  of  several  persons, 
that  is  to  say,  whether  credit  was  given  to  one  or  another, 
a  witness  who  was  present  and  an  actor  in  the  transaction 
may  be  asked  on  whose  credit 28  it  was  made;  or,  in  other 
words,  what  was  the  purpose  and  intent  of  the  payment; 
subject,  of  course,  to  cross-examination  as  to  the  elements 
involved  in  his  answer.29  So  the  lender  may,  in  connection 

thereof    to   present   them   to   the  them  only  or  even  to  a  third  per- 

bank  for  payment.    Pauly  v.  Pauly,  son.    It  may  be  immaterial  to  the 

107  Cal.  8,  40  Pac.  Rep.  29,  48  lender   who   is   benefited   by   the 

Am.  St.  Rep.  98.  loan;  but  he  is  vitally  interested 

26  Stevenson  v.   Hardy,   3  Wils.  in  the  question  as  to  who  become 
388,  s.  c.,  2  W.  Blackst.  872,  mod-  liable  primarily  to   repay  it  and 
ifying  in  effect  Marriott  v.  Lister,  they  are  those  to  whom  it  is  agreed 
2  Wils.  141.  that  the  loan  is  made  regardless 

27  Butcher  v.  Andrews,   1  Salk.  of  what  becomes  of  the  money. 
23.  Isaacson  v.  Etkin,  148  N.  Y.  App. 

28  Bank  v.  Kennedy,  17  Wall.  19.  Div.  219,  132  N.  Y.  Supp.  1044. 
But  the  authorities  are  not  uni-  Under  a  general  denial,  it  was 
form.      See    chapter    on    MONEY  held  competent  for  the  defendant 
PAID.  to  show  that  a  loan  was  not  made 

There  is  no  merit  in  the  conten-  to   him   individually   but    to    the 

tion  that  money  can  only  be  loaned  plaintiff  and  himself  as  partners, 

to  the  party  who  actually  receives  Bolanos    v.    Zumeta,    108    N.    Y. 

it  and  pursuant  to  the  agreement  Supp.  1014. 

uses  it.  It  may  be  loaned  to  two  w  To  make  an  exception  to  such 
or  more  although  pursuant  to  the  a  question  available  the  grounds 
agreement  under  which  the  loan  should  be  stated — as  that  the  wit- 
is  made  it  is  delivered  to  one  of  ness  is  not  shown  to  have  the 


658 


ACTIONS    FOR   MONEY    LENT 


with  the  facts,  testify  to  his  intent  to  give  credit  to  defend- 
ant.30 But  hi  either  case  the  witness's  opinion,  as  distin- 
guished from  a  statement  of  the  fact,  is  not  competent.31 
The  entry  made  by  him  in  his  check  book,  at  the  time  of 
drawing  his  check  for  the  money  to  be  lent,  may  be  proved 
by  him  as  part  of  the  res  gestce.32  After  his  death  the  entry 
s  admissible  without  his  testimony.33 

6.  Request. 

The  request  relied  on  to  characterize  the  transaction  as  a 


means  of  knowledge;  and  that  the 
question  is  framed  so  as  to  call  for 
a  mental  conclusion  instead  of  a 
fact.  57  N.  Y.  651.  See  also 
Chapter  XIV,  paragraph  19. 

30  Danforth  v.  Carter,  4  Iowa, 
230;  and  see  Chapter  XIII,  para- 
graph 19. 

"Id. 

"Stark  v.  Corey,  45  111.  431. 
Compare  Peck  v.  Von  Keller,  76 
N.  Y.  604. 

An  entry  made  in  his  check  book 
by  the  lender  cannot  be  introduced 
as  part  of  the  res  gestce. 

Declarations  made  by  the  lender 
to  third  persons  at  the  time  of 
drawing  his  check,  in  the  absence 
of  the  borrower,  are  not  admissible 
as  part  of  the  res  gestce.  Mills  v. 
McMullen,  4  N.  Y.  App.  Div.  27, 
38  N.  Y.  Supp.  705. 

Where  the  testimony  shows  that 
the  borrower  came  to  the  bank  of 
a  river  and  called  to  the  lender  who 
was  on  the  other  side  of  the  river, 
that  the  lender  took  a  boat  and 
went  across  to  him,  and  that  they 
held  some  conversation;  that  the 
lender  returned,  went  into  his 
house,  and  got  his  wife  to  count 


him  out  $500,  stating  at  the  time 
that  he  was  going  to  lend  it  to  the 
borrower;  that  he  took  the  money 
with  him  and  immediately  went 
back  across  the  river,  where  he  was 
seen  to  hand  something  to  the  bor- 
rower; that  he  came  back  and 
told  his  wife  and  daughter  to 
remember  that  the  borrower  had 
the  $500,  and  added  "Get  the 
book  and  I  will  charge  it,"  the  tes- 
timony is  admissible  as  part  of  the 
res  gestce,  and  sufficient  to  sustain 
a  verdict  that  the  loan  was  made. 
Mayes  v.  Power,  79  Ga.  631,  4  S. 
E.  Rep.  681. 

Stub  entries  in  the  alleged  lend- 
er's check  book,  made  by  his  sec- 
retary, were,  in  the  absence  of 
proof  of  the  secretary's  knowledge 
of  the  purpose  for  which  the  checks 
were  issued,  held  incompetent  to 
establish  a  loan,  even  though  the 
secretary  was  no  longer  living. 
Leask  ».  Hoagland,  205  N.  Y.  171, 
98  N.  E.  Rep.  395,  Ann.  Cas.  1913, 
D.  1199;  Reversing  Leask  v.  Hoag- 
land, 144  App.  Div.  138,  128  N. 
Y.  Supp.  1017. 

33  N.  Y.  Dyeing  &c.  Establ.  v. 
Berdell,  68  N.  Y.  613. 


ACTIONS    FOR   MONEY    LENT  659 

loan,  must  be  proved  to  have  come  from  the  defendant, 
or  his  authorized  agent.  Proof  of  the  actual  application 
of  the  fund  to  his  use,  without  anything  tending  to  show 
recognition  or  ratification  on  his  part,  is  not  enough.34  The 
one  making  the  payment  may  testify  that  it  was  made  in 
consequence  of  the  request.35  Evidence  of  the  request  may 
be  corroborated  by  evidence  of  defendant's  contemporaneous 
declarations  of  intent  to  make  the  request.36 

7.  Authority  of  Agent. 

Where  the  request  was  made  by  an  alleged  agent,  the 
authority  of  the  agent  cannot  be  proved  by  his  declarations 
made  to  the  plaintiff  on  obtaining  the  loan.37  Nor  where 
a  loan  is  obtained  by  a  husband  upon  promissory  notes 
made  by  his  wife  can  his  authority  to  pledge  her  sepa- 
rate estate  for  their  payment  be  proved  by  his  declara- 
tions.38 

Testimony,  hi  general  language,  that  the  one  who  bor- 
rowed was  agent  of  the  defendant  and  acted  as  such,  is  not 
enough  to  prove  his  authority  to  bind  his  principal  by  bor- 
rowing.39 Even  proof  of  special  authority  to  buy  goods, 

34  Kelley    v.    Lindsey,    7    Gray          M  Clark  v.  McGraw,   14  Mich. . 
(Mass.),  287;  Henry  v.  Wilkes,  30      139,  149. 

N.  Y.  562.     Compare  Perkins  v.  37  Starin  v.  Town  of  Genoa,  23 

Dunlap,  5  Greenl.  268,  which  is  N.  Y.  489,  s.  p.,  Deck  v.  Johnson,  4 

sustainable  as  an  action  for  money  Abb.  Ct.  App.  Dec.  315.    For  rules 

paid  to  defendant's  use  rather  than  applicable   to   master's   borrowing 

for  money  lent.     So  if  a  lender  for  ship  in  foreign  port,  see  The 

agrees  to  take  and  does  take  the  Grapeshot,  9  Wall.  138,  and  cases 

express  written  promise  of  A.,  the  cited;  The  Emily  Souder,  17  Id. 

fact  that  the  money  was  applied  666. 

to  the  joint  use  of  A.  &  B.  will  not  38  Deck  v.  Johnson,  1  Abb.  Ct. 

establish  their  joint  liability  for  a  App.  Dec.  497;  Second  Nat.  Bank 

loan.     Underbill   v.   Crawford,  29  v.  Miller,  2  N.  Y.  S.  Ct.  (T.  &  C.) 

Barb.  664.  104. 

35  See  Sweet  v.  Tuttle,  14  N.  Y.  39  Perkins  v.  Stebbins,  29  Barb. 
465.     But  the  authorities  are  not  523;  and  see  Kent  v.  Tyson,  20 
uniform.    See  Chapter  on  MONEY  N.  H.  121. 

PAID.  An  association  cannot  be  bound 


660 


ACTIONS    FOR   MONEY    LENT 


is  not  sufficient  evidence  of  authority  to  borrow  the  money 
with  which  to  buy.40  But  if  the  money  has  been  actually 
mingled  with  defendant's  funds,  or  applied  to  his  use,  very 
slight  evidence  of  recognition  and  adoption  on  his  part  will 
suffice.41  Evidence  that  the  money  actually  and  beneficially 
went  into  defendant's  possession,  and  was  retained  after 
demand,  dispenses  with  necessity  of  other  evidence  of  special 
authority  hi  the  agent.42  If  the  agent  had  authority  to  bor- 
row, the  misapplication  of  the  money  by  him  is  not  rel- 
evant,43 unless  plaintiff  was  connected  with  it.  Where  the 


by  a  loan  made  to  its  treasurer 
on  his  personal  promissory  note, 
where  the  evidence  does  not  show 
that  the  money  borrowed  ever 
came  to  the  association  or  was 
used  for  its  benefit.  Pelchat  v. 
Societ6  des  Artisans,  67  Atl.  Rep. 
(R.  I.)  362. 

40  Bank  of  Indiana  v.  Bugbee,  1 
Abb.  Ct.  App.  Dec.  86;  Martin  v. 
Peters,  4  Robt.  434. 

Where  one  is  a  mere  agent  to 
purchase  land  he  is  not  by  any 
implication  authorized  to  pledge 
the  credit  of  his  principal  for  the 
satisfaction  of  a  prior  lien.  Blass  v. 
Terry,  156  X.  Y.  122,  50  N.  E. 
Rep.  953. 

An  agent  who  had  authority  to 
buy  and  ship  horses  had  no  au- 
thority to  borrow  money  for  his 
principal,  except  that  needed  to 
purchase  feed  for  the  animals  after 
their  purchase  and  before  ship- 
ment to  the  defendant.  Rider  i\ 
Kirk,  82  Mo.  App.  120. 

41  See  Gill  v.  Gillingham,  1  F.  & 
F.  284;  Hearne  v.  Keene,  5  Bosw. 
579.    Especially  now  that  parties 
can   testify.      1    Daly,   327.     Ap- 
proval of  an  advance  to  pay  duties 


for  an  agent  does  not  imply  au- 
thority in  the  agent  to  borrow. 
Tucker  v.  Woolsey,  6  Lans.  482. 

Mere  retention  of  money  received 
of  an  agent  was  deemed  a  ratifica- 
tion of  a  loan  negotiated  by  the 
agent  for  the  principal,  though  the 
fact  that  the  money  was  borrowed 
was  not  discovered  until  after  its 
receipt  from  the  agent.  Fitch  v. 
Lewiston  Steam-Mill  Co.,  80  Me. 
34, 12  Atl.  Rep.  732. 

"Merchants'  Bank  v.  State 
Bank,  10  Wall.  644;  Gold  Mining 
Co.  v.  National  Bank,  96  U.  S. 
(6  Otto)  640,  644. 

The  books  of  the  plaintiff  show- 
ing loans  to  "Adolph  Rosenthal, 
Special"  are  not  competent  evi- 
dence to  establish  a  loan  made  to 
defendant  I.  B.  Rosenthal,  even 
though  the  plaintiff  testifies  that 
I.  B.  Rosenthal  requested  that  his 
account  be  kept  in  that  form  to 
prevent  commercial  agencies  from 
ascertaining  his  indebtedness  to 
plaintiff.  Sonnenfeld  v.  Rosen- 
thai,  247  Mo.  238,  152  S.  W.  Rep. 
321. 

43  City  Bank  of  New  Haven  v. 
Perkins,  4  Bosw.  420. 


ACTIONS    FOR   MONEY   LENT 


question  is  whether  the  agent's  authority  extended  to  bor- 
rowing, defendant  may  be  held  liable  by  evidence  that  he 
had  held  out  the  agent  as  authorized  by  previously  ratifying 
repeated  transactions  of  the  same  sort.44 

8.  Parties  to  Joint  Adventure. 

In  respect  to  the  power  of  one  to  borrow  for  all,  there  is  a 
distinction  between  a  firm  (where  the  power  depends  on 
familiar  principles  of  the  law  of  partnership)  and  a  combi- 
nation of  persons  having  merely  a  joint  ownership  of  prop- 
erty, or  even  an  interest  in  a  joint  adventure  or  enterprise. 
Proof  of  joint  ownership  of  property  does  not  alone  suffice 
to  establish  authority  in  one  of  the  owners  to  borrow  money 
on  the  credit  of  the  others,  even  for  the  benefit  of  the  prop- 
erty.45 Nor  does  proof  that  several  were  engaged  together 


44  Kelley  v.  Lindsey,  7  Gray 
(Mass.),  287;  Bank  of  Auburn  ». 
Putnam,  1  Abb.  Ct.  App.  Dec. 
80;  Hammond  v.  Varian,  54  N.  Y. 
398.  Where  such  transactions 
came  to  the  knowledge  of  the 
lender  before  the  loan,  and  he 
acted  on  the  faith  of  them,  the 
defendant  is  liable  also  on  the 
ground  of  estoppel.  The  cases 
where  it  has  not  appeared  that  the 
lender  had  any  knowledge  of  such 
transactions,  are  not  in  harmony. 
It  depends  somewhat  on  the  nature 
of  the  agency^  and  sometimes,  in 
part,  on  the  usages  of  business. 
See,  for  instance,  8  N.  Y.  167,  41 
Me.  382,  56  N.  Y.  583,  rev'g  1 
N.  Y.  S.  Ct.  (T.  &  C.)  247.  As  to 
whether,  where  a  son  borrows  in 
his  father's  name,  and  there  is  no 
direct  proof  of  agency,  the  fact 
of  the  father's  having  paid  other 
debts  contracted  by  his  son  is  ad- 
missible for  the  purpose  of  charg- 


ing him — compare  56  N.  Y.  336, 
rev'g  7  Lans.  381;  and  54  N.  Y. 
398. 

The  authority  can  be  conferred 
by  a  long  course  of  dealing,  as 
well  as  by  express  permission. 
National  Park  Bk.  v.  American 
Exch.  Nat.  Bk.,  40  N.  Y.  Misc. 
672,  83  N.  Y.  Supp.  249. 

Evidence  that  the  plaintiff's 
intestate  made  prior  loans  to  the 
defendant  on  terms  similar  to  those 
of  the  transaction  sued  on  is  ad- 
missible. Mayes  v.  Power,  79 
Ga.  631,  4  S.  E.  Rep.  681. 

Evidence  as  to  the  conditions 
on  which  plaintiff  loaned  money 
to  others  is  admissible  on  the  ques- 
tion of  the  conditions  on  which  he 
made  the  loan  to  the  defendant. 
Perrin  v.  Carbone,  1  Cal.  App.  295, 
88  Pac.  Rep.  222. 

45  See  Mumford  v.  Brown,  6 
Cow.  475. 

Under  a  general  denial  of  a  com- 


662  ACTIONS    FOR   MONEY    LENT 

in  a  joint  adventure,  as  distinguished  from  a  partnership, 
suffice.46  In  such  cases  there  must  be  express  authority, 
or  circumstances  from  which  authority  may  be  inferred,  or 
ratification.47 

r 

9.  Joint  Debtors. 

The  request  of  one  of  several  joint  debtors  who  are  ap- 
parently all  principals,  although  it  may  suffice  to  sustain  an 
action  for  money  paid,48  will  not  suffice  to  sustain  an  action 
for  money  lent;  for  one  of  several  joint  debtors,  who  is  a 
principal  as  between  himself  and  the  others,  has  no  implied 
authority  to  borrow  money  for  all  jointly  to  pay  the  debt.49 

10.  Written  Evidence. 

The  law  recognizes  the  general  usage  of  men,  in  lending 
money,  to  take  written  evidence  of  it 50  and  this  is  one  reason 
why  proof  of  the  mere  delivery  of  money  without  writing 
is  presumed  to  be  payment  of  an  obligation,  not  a  loan. 
Under  modern  procedure,  the  question  whether  the  action 

plaint  for  money  loaned,  the  de-  Sugart    v.    Mays,    54    Geo.    554. 

fendant  may  prove  that  the  trans-  Where,  however,  plaintiff  testified 

action  was  not  a  loan  or  payment  that  he  lent  the  money  sued  for  on 

to  him  individually,  but  was  an  a   credit  of  six  months,   without 

incident  merely  to  the  partnership  taking. a  note — Held,  that,  as  un- 

existing  between  him  and  the  plain-  favorable  inference  might  be  drawn 

tiff.    Bolanos  v.  Zumeta,  108  N.  Y.  against  this  statement,  from  the 

Supp.  1014.  length  of  time,  it  was  competent 

46  Moss    v.    Jerome,    10    Bosw.  to  allow  him  to  testify  that  he  had 
220;  Alger  v.  Raymond,  7  Id.  426.  frequently  before  made  such  loans 

47  See  Chapter  VII.  to  other  persons.     Stolp  v,  Blair, 

48  Elmendorf  v.  Tappen,  5  Johns.  68  111.  541. 

176.  Thus  it  has  been  held  "that  the 

49  Ib.;   Rolfe   v.   Lamb,    16   Vt.      lending  of  money  .  .  .  and  taking 
514.  notes  or  other  securities,  whether 

^Veiths  v.  Hagge,  8  Iowa,  187.  it  be  for  the  purpose  of  discount 

But  the  peculiar  habit  of  the  lender  or  to  secure  a  debt,  is  a  part  of  the 

is  not  primarily  competent  without  legitimate  business  of  a  banking 

something  to  show  that  the  other  corporation."    Fawcett  v.  Mitchell, 

party  dealt  with  knowledge  of  it.  133  Ky.  361,  117  S.  W.  Rep.  956. 


ACTIONS    FOR   MONEY    LENT 


663 


should  be  for  money  lent  or  on  the  written  contract,  is  not 
vital;  and  if  the  defendant  is  not  surprised,  the  court  should 
disregard  a  variance.51  If  plaintiff  took  an  express  written 
agreement,  and  it  is  void  for  reasons  not  inherent  in  the  loan 
itself,  or  if  it  has  been  rescinded,  he  may  sue  for  money  lent, 
ignoring  the  express  agreement.52  But  if  the  plaintiff  relies 
on  a  written  promise  to  repay,  he  cannot  resort  to  parol  evi- 
dence to  enable  himself  to  recover  otherwise  than  according 
to  its  tenor;  nor  against  other  parties  than  those  bound  by 
the  writing; 53  except  that  if  the  agreement  is  non-negotiable 
and  not  under  seal,  he  may  give  parol  evidence  to  charge 
the  undisclosed  principal  of  the  signer,54  or  to  show  himself 
the  real  party  in  interest  though  not  named  in  the  paper. 
If  the  agreement  is  to  pay  according  to  the  terms  of  another 


"Wright  v.  Hooker,  10  N.  Y. 
58;  and  see  54  N.  Y.  686,  affi'g  4 
Daly,  92,  3  N.  Y.  S.  Ct.  (T.  &  C.) 
443.  But  a  promissory  note  is 
not  evidence  of  money  lent,  except 
as  between  the  original  parties  to 
it.  Rockfeller  v.  Robinson,  17 
Wend.  206,  limiting  4  Id.  411. 
Nor  as  against  one  signing  ex- 
pressly as  surety.  Balcom  v.  Wood- 
ruff, 7  Barb.  13. 

81  Thus,  on  a  loan  which  was  in 
itself  valid,  the  lender  may  recover, 
although  he  took  a  security  which 
the  borrowers  were  forbidden  by 
law  to  issue.  Curtis  v.  Leavitt, 
15  N.  Y.  9,  95,  96,  246,  296;  Van- 
atta  v.  State  Bank,  9  Ohio  St.  27. 
So  where  the  security  given  has 
been  surrendered  by  mistake.  Bax- 
ter v.  Paine,  16  Gray  (Mass.),  273. 
Void  securities  are  admissible  in 
evidence  for  the  purpose  of  proving 
that  they  are  worthless.  Enthoven 
».  Hoyle,  16  Jur.  272. 

Where  a  declaration  contained 
counts  both  for  money  loaned  and 


on  a  note,  it  was  held  that  the 
plaintiff  might  recover  on  the  first 
count  if  he  should  fail  on  his  count 
on  the  note.  Councilman  v.  Tow- 
son  Nat.  Bank,  103  Md.  469,  64 
Atl.  Rep.  358. 

"See  note  2  (below).  But  a 
deposit  with  bankers,  for  which  the 
depositor  took  the  banker's  cer- 
tificate payable  on  presentation 
and  indorsement,  is  recoverable 
as  a  loan,  and  without  indorse- 
ment before  suit;  but  it  should  be 
in  possession  ready  for  surrender. 
Umbarger  v.  Plume,  26  Barb. 
461. 

"Briggs  v.  Partridge,  64  N.  Y. 
362,  7  M.  &  G.  590.  As  to  ne- 
gotiable paper,  compare  1  Wall. 
234. 

Only  parties  named  in  and  who 
executed  an  instrument  under  seal 
can  enforce  its  covenants.  Wil- 
liams ».  Magee,  76  N.  Y.  App.  Div. 
550,  78  N.  Y.  Supp.  53;  Henricus 
v.  Englert,  137  N.  Y.  488,  33  N.  E. 
Rep.  550. 


664  ACTIONS   FOR   MONEY    LENT 

writing  referred  to  without  reciting  its  terms,  the  other  writ- 
ing must  be  produced  or  accounted  for,55  but  its  execution 
need  not  be  proved.56  A  written  agreement,  if  any,  is  the 
best  evidence,  and  should  be  produced  or  accounted  for. 
Where,  however,  the  writing  was  not  made  as  embodying  the 
contract  or  promise,  but  was  merely  a  signature  or  entry 
for  an  incidental  purpose,57  it  is  not  the  primary  evidence, 
but  the  transaction  may  be  proved  by  parol. 

11.  Due  Bill. 

An  "I.  0.  U."  and  a  due  bill  (e.  g.,  Due  A.  B.  $80  on  de- 
mand) are  competent  as  evidence  of  a  loan; 58  but  they  are, 
if  unexplained,  quite  as  appropriate  in  support  of  an  allega- 
tion of  an  account  stated.59  Evidence  identifying  the  plain- 
tiff with  "U."  or  "the  bearer,"  is  not  necessary  in  the  first 
instance.60  It  is  for  defendant  to  show  that  the  paper  was 
given  to  some  one  else.61 

12.  Defendant's  Check  in  Favor  of  Plaintiff. 

A  check  drawn  by  defendant  on  his  banker,  in  favor  of 
plaintiff,  and  produced  by  plaintiff,  is  not  by  itself  evidence 
of  a  loan  by  plaintiff,  but  rather  of  a  payment  to  him; 62  but 
with  evidence,  for  instance,  that  it  was  drawn  on  a  bank 
where  defendant  had  no  funds,  and  was  not  intended  to  be 

85  Alabama,  etc.,  R.   R.   Co.   v.  Otherwise  of  a  mere   conditional 

Nabors,  37  Ala.  489.  promise  to  pay  a  sum  of  money, 

56  Smith  v.  N.  Y.  Central  R.  R.  without  importing  any  considera- 

Co.,  4  Abb.  Ct.  App.  Dec.  262.  tion.    Morgan  v.  Jones,  1  C.  &  J. 

67  As  where  the  clerk  procured  162. 

the  borrower  to  write  his  name  in  59  See   Fessenmayer   v.   Adcock, 

the  cash  book,  so  as  to  know  the  16  M.  &  W.  449,  1  Esp.  Gas.  426; 

correct  spelling.    Keene  v.  Meade,  and  see  L.  R.  1  C.  P.  297,  L.  J.  10  Q. 

3  Pet.  1,  7.  B.  43. 

58  Hinsdale  v.  Eells,  3  Conn.  377;  M  Fessenmayer  v.  Adcock  (above). 

Hay  v.   Hide,    1    D.   Chip.    (Vt.)  61  Curtis  v.  Rickards,  1  M.  &  G. 

214,  s.  P.,  12  Ad.  &  E.  641.    So  is  a  46. 

memorandum  check.     Turnbull  v.  62Pearce  v.  Davis,  1  Moody  & 

Osborne,  12  Abb.  Pr.  N.  S.  200.  Rob.  365. 


ACTIONS    FOR    MONEY    LENT 


665 


presented,  but  given  as  a  memorandum,  it  will  support  the 
action.63  Unless  some  circumstances  are  shown  to  excuse 
the  omission,64  there  must  be  evidence  of  demand  and  no- 
tice; 65  but  delay  therein  is  not  material,  unless  the  drawee 
has  failed  or  the  drawer  otherwise  sustained  injury  by  the 
delay.66 

13.  Defendant's  Checks  on  Plaintiff. 

Checks  drawn  by  the  defendant  upon  the  plaintiffs,  his 
bankers,  and  paid  by  them,  are  not  alone  evidence  of  money 
lent  by  them.67  There  must  be  proof  of  such  a  state  of  the 
accounts  as  to  show  that  the  checks  represent  money  lent.68 


63  Gushing  v.  Gore,  15  Mass.  69; 
Currier  v.  Davis,  111  Id.  480;  and 
see  Carter  v.  Hope,  10  Barb.  180. 

Where  a  borrower  gives  a  check 
with  the  understanding  that  it 
is  to  be  held  as  a  memorandum  of 
the  loan  and  not  to  be  presented 
in  the  regular  way,  the  check  is 
evidence  of  the  loan.  Currier  v. 
Davis,  111  Mass.  480. 

64  As   that  the  drawer  had  no 
funds  there.     Reddington  v.   Gil- 
man,  1  Bosw.  235. 

65  Pearce  v.  Davis,  1  Moody  & 
Rob.  365. 

66  Murray    v.    Judah,    6    Cow. 
484. 

One  who  receives  a  check  as- 
sumes the  obligation  to  present  it 
within  a  reasonable  time,  and  fail- 
ing to  perform  his  duty  operates 
to  discharge  the  endorsers  and  the 
drawer  after  a  failure  of  the  bank 
upon  which  the  check  was  drawn. 
Martin  v.  Home  Bank,  160  N.  Y. 
190,  54  X.  E.  Rep.  717. 

67  White  v.  Ambler,  8  N.  Y.  170, 
s.   P.,    Reddington    v.    Gilman,    1 
Bosw.  235. 


68  The  bank  books  are  not  com- 
petent for  the  purpose.  White  v. 
Ambler  (above).  And  the  testi- 
mony of  a  clerk,  speaking  in  gen- 
eral terms  and  from  recollection, 
without  the  production  of  the 
books,  that  at  the  time  they  were 
drawn  the  defendant's  account  was 
greatly  overdrawn,  is  not  enough. 
Fletcher  v.  Manning,  12  Mees.  & 
W.  571. 

Producing  and  proving  drafts 
of  the  defendant  on  the  plaintiffs 
cannot  alone  make  a  cause  of 
action  for  money  loaned;  the 
plaintiffs  are  bound  to  show  as  in- 
dispensable to  their  recovery  the 
terms  and  conditions  of  the  con- 
tract. Doyle  v.  Unglish,  143  N.  Y. 
556,  38  N.  E.  Rep.  711,  affirming 
66 Hun  (N.  Y.),635,21  N.  Y.  Supp. 
650. 

Where  a  bank  paid  an  over- 
draft, it  was  held  that  the  amount 
in  excess  of  the  deposit  which  the 
bank  paid  was  a  loan  to  the  de- 
positor for  which  the  bank  could 
recover  upon  an  implied  promise 
to  repay.  People's  Nat.  Bk.  v. 


666  ACTIONS    FOR   MONEY    LENT 

14.  Defendant's  Receipt. 

Upon  the  same  principle  defendant's  simple  receipt  for 
money,  without  indicating  it  as  a  loan,  is  competent,  but 
by  itself  wholly  insufficient  to  support  the  action.69 

15.  Plaintiff's  Check. 

Where  a  check  drawn  by  plaintiff  in  favor  of  defendant  is 
relied  on  as  evidence  of  the  payment,  the  check  being  pro- 
duced from  plaintiff's  custody,  though  with  marks  of  can- 
cellation by  the  bank,  is  not  alone  evidence  that  the 
money  was  received  by  the  defendant,  unless  it  was  payable 
to  his  order,  and  indorsed  by  him.  If  it  be  payable  to  bearer, 
it  is  necessary  to  give  some  evidence  tending  to  show  that 
defendant  received  the  money.70  If  the  books  of  the  bank  or 
a  pass-book  are  relied  on,  they  should  be  proved  by  their 
production  (or  by  the  production  of  a  copy  of  the  entries, 
where  that  is  allowed  by  law),71  and  by  producing  the  clerk 
who  made  the  entries,72  or  accounting  for  his  absence,  and 

Rhoades,    28    Del.    65,    90    Atl.  poration  at  the  time  the  loan  was 

Rep.  409.  made.    Holmes  v.  Smith,  25  Colo. 

"McFailand  v.  Strip,   17  Ark.  A.  88, 135  Pac.  Rep.  759. 

41,andsee3J.J.  Marsh.  37.  71As  in  case  of  a  foreign  cor- 

70  Patton  v.  Ash,  7  Serg.  &  R.  poration,  see  p.  163,  n.  53,  of  this 
125;  Fleming's  Ex'r  v.  McLain,  13  vol.  Compare  Merrill  v.  Ithaca 
Penn.  St.  177.  See  also  Beasley  R.  R.  Co.,  16  Wend.  586. 
v.  Crossley,  3  Bing.  430.  The  Allegations  by  an  executrix  that 
entry  in  the  check  book  that  it  the  decedent  delivered  his  check, 
was  drawn  to  defendant,  is  not  the  proceeds  of  which  were  re- 
alone  enough.  Freeman  v.  Kelly,  ceived  by  the  defendant,  and  that 
Hoffm.  90,  and  see  3  Pick.  96.  the  decedent  was  not  at  the  time 

Where  the  defendant  contended  indebted  to  the  defendant,  were 

that  the  loan  was  not  made  to  him  held    sufficient    without    a    direct 

personally   but   to   a    corporation  allegation  of  a  loan.    De  Cordova 

of  which  he  was  treasurer,  it  was  v.  Sanville,  165  App.  Div.  128,  150 

held  that  the  plaintiff's  check  made  N.  Y.  Supp.  709. 

payable  to  the  defendant's  order  "Patton  v.  Ash   (above).     See 

corroborated    the    former's    testi-  7  Gray  191,  and  Chapter  on  PAY- 

mony    that    he    was    not    aware  MENT. 

and  was  not  informed  of  the  de-  Where   the   bookkeeper   of   the 

fendant's  connection  with  the  cor-  plaintiff  testifies  as  to  a  book  in 


ACTIONS    FOR   MONEY    LENT 


667 


proving  his  handwriting.  Proof  that  the  money  was  actually 
paid  to  the  defendant  on  plaintiff's  check  will  not,  however, 
alone  support  the  action;  for,  like  a  receipt,  it  is  only  evi- 
dence of  the  payment  of  money  which  presumptively  is  hi 
satisfaction  of  a  debt,  and  not  a  loan.73 


which  the  entries  are  in  his  hand- 
writing the  book  will  be  admitted 
in  evidence.  Wallabout  Bank  v. 
Peyton,  123  N.  Y.  App.  Div. 
727,  108  N.  Y.  Supp.  42. 

73  Gary  v.  Gerrish,  4  Esp.  Gas.  9; 
Aubert  v.  Walsh,  4  Taunt.  293; 
Fleming's  Ex'r  v.  McLain  (above). 
Proof  of  a  check  drawn  by  plain- 
tiffs, and  payable  to  and  indorsed 
by  defendant,  and  paid  and  pro- 
duced by  plaintiffs,  who  are  bank- 
ers, together  with  an  envelope 
indorsed  by  defendant  with  a  mem- 
orandum describing  the  note,  and 
enumerating  securities,  is  sufficient 
evidence  to  go  to  the  jury  to  es- 
tablish a  loan.  Union  Trust  Co. 
v.  Whiton,  9  Hun,  657. 

There  is  some  conflict  in  the 
cases  as  to  whether  the  rule  of 
res  gestce  will  not  justify  the  ad- 
mission of  declarations  of  the 
plaintiff,  made  at  the  time  of  de- 
livering the  money  or  drawing  the 
check,  as  evidence  that  he  intended 
a  loan  and  not  a  payment,  although 
made  in  the  absence  of  the  de- 
fendant. In  some  cases  such  dec- 
larations have  been  excluded, 
on  the  ground  that,  defendant 
being  absent,  they  did  not  bind 
him.  But  the  better  view  is  that 
such  declarations  are  competent 
for  the  purpose  of  characterizing 
the  act  on  the  part  of  the  plaintiff, 
it  being  understood  that  proof  that 


he  intended  a  loan  is  not  sufficient 
to  support  the  action  without  ad- 
ditional evidence  proper  to  bind 
the  defendant.  Huntziger  v.  Jones, 
60  Perm.  St.  170. 

The  effect  of  such  declarations, 
like  the  effect  of  the  act  itself, 
may  depend  upon  evidence  yet 
to  be  given.  This  principle  is 
fully  sustained  in  Beaver  v.  Taylor 
(1  Wall.  637),  where  plaintiff  was 
allowed  to  give  in  evidence  the 
letters  of  his  correspondent  who 
made  payments  on  his  behalf,  and 
the  entries  which  plaintiff  there- 
upon made  in  his  own  books,  not 
as  matters  binding  the  defendant, 
but  as  part  of  the  res  gestce  neces- 
sary to  the  complete  proof  of  the 
act  of  the  plaintiff  in  making  the 
payment. 

"The  giving  of  a  check  is  pre- 
sumptively the  payment  of  a  debt, 
and,  to  raise  the  presumption 
that  it  was  a  loan,  additional  proof 
is  required  to  be  given."  Mills 
v.  McMullen  et  al.,  4  N.  Y.  App. 
Div.  27,  38  N.  Y.  Supp.  705. 

To  overcome  the  presumption 
that  a  check  was  given  to  pay  a 
debt  and  not  as  a  loan,  it  was  held 
competent  to  show  the  business 
relations  and  transactions  between 
the  parties.  Russell  v.  Amlot,  132 
N.  Y.  App.  Div.  584,  116  N.  Y. 
Supp.  1080. 

For  further  cases  on  this  point 


0(iS 


ACTIONS    FOR   MONEY    LENT 


16.  Plaintiff's  Account  Books. 

The  plaintiff's  accounts  are  not  in  general  admissible  as 
independent  evidence  that  money  was  paid,74  much  less  that 
a  payment  was  a  loan.  Where  plaintiff  himself  testifies 
to  the  loan,  his  own  entry  of  the  fact  of  payment,  made 
contemporaneously  with  the  fact,  and  as  part  of  the  res  gestce, 
is  admissible  upon  that  ground.75  Where  the  plaintiff  or 
other  person  making  the  entry  is  not  examined  as  a  witness, 
the  entries  in  plaintiff's  books  are  not  in  general  competent 
evidence  of  the  payment.76  In  some  States,  however,  the 
parties'  own  books  are  admissible  for  small  sums,  with  cer- 
tain suppletory  proof.77  The  reason  why  the  parties'  own 


see  the  long  list  of  citations  in 
Amer.  &  Eng.  Ann.  Cases,  1913, 
D.  p.  1203. 

74  Unless  the  defendant  is  shown 
to  have  had  access,  and  assented. 
Himes  v.  Barnitz,  8  Watts  (Penn.), 
39,  47.  "A  man's  book  is  not  tes- 
timony in  his  own  favor  touching 
the  receipt  of  money  by  him.  By 
immemorial  usage,  a  person's  own 
books  have,  for  certain  defined 
purposes,  become  legal  evidence, 
recognized  by  repeated  decisions 
of  the  courts  of  this  state.  They 
are  legitimately  prima  facie  evi- 
dence to  show  the  sale  and  deliv- 
ery, in  the  usual  course  of  business, 
of  personal  property  and  its  price, 
and  of  work  and  labor  performed, 
and  the  sums  due  for  such  services. 
Thus  far  the  rule  that  a  man  can- 
not put  in  evidence  his  own  writ- 
ten memoranda  has  been  abro- 
gated, the  reason  of  such  infringe- 
ment of  the  common-law  principle 
being  that  it  was  a  necessity  in  the 
transaction  of  certain  classes  of 
business.  It  has,  however,  never 
been  authoritatively  declared  in 


this  state  that  these  entries  have 
any  evidential  force  beyond  these 
functions."  Oberge  v.  Breen,  50 
N.  J.  Law,  145,  7  Am.  St.  Rep.  779, 
12  Atl.  Rep.  203. 

Text  cited  in  Textile  Pub.  Co. 
v.  Smith,  31  N.  Y.  Misc.  271,  64 
N.  Y.  Supp.  123. 

Plaintiff's  books  showing  loans 
to  "Adolph  Rosenthal,  Special," 
were  held  incompetent  to  estab- 
lish loans  to  I.  B.  Rosenthal,  the 
defendant.  Sonnenfeld  v.  Rosen- 
thai,  247  Mo.  238,  152  S.  W.  Rep. 
321. 

75  The  law  making  parties  com- 
petent does  not  exclude  their 
books. 

"Low  v.  Payne,  4  N.  Y.  247; 
Veiths  v.  Hagge,  8  Iowa,  184; 
Maine  v.  Harper,  4  Allen  (Mass.), 
115. 

"See  the  chapter  on  SALES  OF 
GOODS,  &c.  A  book  kept  by  a  loan 
agency  showing  the  date  and  num- 
ber of  each  loan,  the  name  and  ad- 
dress of  the  lender,  and  the  place 
where  the  loan  is  to  be  paid,  a  de- 
scription of  the  property  mort- 


ACTIONS    FOR   MONEY    LENT  669 

books  are  not  admitted  to  prove  loans  is,  that  they  are  not 
the  usual  method  of  preserving  evidence  of  loans,  and  an  ex- 
ception, therefore,  to  the  rule  excluding  them  has  recently  been 
recognized  in  the  case  of  the  books  of  bankers  and  others, 
where  there  is  evidence  that  the  payment  of  money  con- 
stituted, at  the  time  the  charges  were  made,  the  ordinary 
business  of  the  party,  and  that  the  charges  in  question  were 
made  in  the  ordinary  course  of  that  business.78 

17.  Character  in  which  the  Parties  Dealt. 

Where  the  action  is  by  a  person  suing  in  his  individual 
right,  and  the  proof  is  of  a  debt  due  him  in  his  representa- 
tive capacity  or  conversely,  the  plaintiff  cannot  recover 
without  an  amendment  in  this  respect,  unless  the  case  is 
such  that  a  payment  to  the  plaintiff  will  protect  the  defen- 
dant irrespective  of  the  variance.79 

18.  Connected  and  Collateral  Agreements. 

Where  the  loan  was  made  upon  a  promise  to  repay  or  give 
security  for  repayment,  which  is  void  by  the  statute  of 

gaged  as  security,  the  time  when  that  the  case  falls  within  the  gen- 

the  loan  is  paid,  and  date  of  re-  eral  principle  which  justifies   the 

mitting    of    the    proceeds    of    the  admission  of  the  party's  own  books 

principal,  is  not  a  book  of  account,  in  other  cases,  namely,  that  bet- 

and  is,  therefore,  not  admissible  in  ter    evidence    is    not    obtainable, 

evidence  in  favor  of  the  borrower  Young  v.  Jones,  8  Iowa,  219. 
for   the   purpose   of   proving   the          79  Thus,  defendant  cannot  defeat 

payment   of   the   loan.     Security  a  recovery  by  showing  that  the 

Co.  v.  Graybeal,  85  Iowa,  543,  39  funds  were  held  by  the  lender  in  a 

Am.  St.  Rep.  311,  52  N.  W.  Rep.  trust  capacity,  and  that  he  had 

497.  no  power  to  loan  them,  unless  de- 

/8Cummings  v.  Hill's  Adm'r,  35  fendant  shows  also  that  by  reason 

Iowa,    253.       See    People's    Nat.  of  a  successor  in  the  trust  having 

Bk.   v.   Rhoades,   28  Del.   65,   90  already  been  appointed,  or  other- 

Atl.  Rep.  409.    But  in  the  courts  wise,  a  payment  to  the  plaintiff 

where  such  evidence  is  received,  will    not    protect    the    defendant, 

it  should  appear  that,  from  the  See  also  chapters  on  EXECUTORS 

nature  of  the  transactions  or  course  AND    ADMINISTRATORS,    OFFICERS, 

of  dealing,  or  other  circumstances,  RECEIVERS,  AND  TRUSTEES. 


670  ACTIONS    FOR   iMONEY    LENT 

frauds,80  as  well  as  where  a  stipulation  for  a  term  of  credit 
was  obtained  by  fraud  of  the  borrower,81  or  upon  a  condi- 
tion which  remains  unperformed  (as  distinguished  from  an 
alternative  contract),82  or  upon  a  special  agreement  for 
security  which  has  been  wholly  rescinded  by  the  parties,83 
the  loan  may  be  recovered  without  regard  to  the  special 
agreement,  and  plaintiff  may  prove  the  fraud,  etc.,  though 
not  alleged,  as  part  of  the  res  gestce.M  If  the  lender  received 
a  collateral  security,  this  fact  does  not  suspend  his  remedy; 85 
and,  he  need  not  prove  an  offer  to  return  it  before  suit; 
it  is  enough  that  he  holds  it  ready  to  be  surrendered ;  ^ 
but,  if  it  be  negotiable  paper,  and  indorsers  or  other  parties 
contingently  liable  have  been  discharged,  it  must  appear 
that  they  were  not  discharged  by  neglect,  or  at  least  that 
defendant  has  lost  nothing  by  such  neglect.87  If  the  lender 
has  entered  into  an  agreement  for  satisfaction  or  payment 
which  has  failed  by  default  of  the  borrower  to  fulfill  it,  or 
was  vitiated  by  fraud  on  his  part,  the  lender  may  recover  in 
disregard  of  such  agreements.88 

19.  Mortgage. 

Where  a  mortgage  of  real  or  personal  property  is  taken  to 
secure  payment,  if  a  written  acknowledgment  of  a  debt  on 
the  part  of  the  defendant  is  embodied  in  it  or  taken  with  it, 
the  lender  may  recover  thereon  without  first  enforcing  the 
mortgage.89  But  where  the  only  writing  expresses  that  the 

80  Swift  v.  Swift,  46  Cal.   266;          M  Scott  v.  Parker,  1  Q.  B.  809; 
Binion  v.  Browning,  26  Mo.  270.  Lawton  v.  Newland,  2  Stark.  73. 

81  Nelson  v.  Hyde,  66  Barb.  59.  "  Marston  v.  Boynton,  6  Mete. 

82  Bristow  v.  Needham,  9  Mees.  (Mass.)  127. 

&  W.  729.  « Westcott  v.  Keeler,  4  Bosw. 

83  James  v.  Cotton,  7  Bing.  266.        564;  Arnold  v.  Crane,  8  Johns.  79. 
81  Nelson  v.  Hyde  (above).   Com-          »  Elder  v.  Rouse,  15  Wend.  218. 

pare  Peck  v.  Root,  5  Hun,  547;  If   the   mortgage   expressly   ac- 

French  v.  White,  5  Duer,  254.  knowledges  an  existing  debt,  then 

85  Brengle  v.  Bushey,  40  Md.  141,  the  personal  liability  of  the  mort- 

s.  c.,  17  Am.  R.  586;  Lewis  v.  U.  S.,  gagor  is  implied  from  the  execu- 

92  U.  S.  (2  Otto)   623,  and  cases  tion  of  the  mortgage.    Consumers' 

cited.  Brewing  Co.  v.  Braun,  147  N.  Y. 


ACTIONS    FOR   MONEY    LENT 


671 


mortgage  was  for  the  purpose  of  securing  a  sum  specified, 
not  indicated  to  be  a  debt,  the  mortgagor  is  presumptively 
not  personally  liable.90 

20.  Medium  of  Repayment. 

Where  there  is  an  express  promise  to  repay  in  a  particular 
currency — e.  g.,  to  pay  so  many  "dollars" — parol  evidence 
is  not  admissible  to  prove  that  any  other  than  lawful  money 
of  the  country  was  intended,  unless  the  contract  is  shown  to 
have  been  made  in  a  country  where  another  currency  or  cur- 
rency using  that  designation  for  com  of  a  different  value, 
was  authorized.  In  such  case  parol  evidence  is  admissible 
to  explain  what  was  intended,91  and  to  prove  the  equivalent 
value.92 

21.  Defenses;  Disproving  Loan. 

If  the  making  of  any  loan  whatever  by  plaintiff  is  denied,93 


App.  Div.  171,  132  N.  Y.  Supp. 
87. 

Even  if  the  acknowledgment  of 
the  debt  be  insufficient  to  consti- 
tute a  covenant,  it  is  still  a  good 
admission,  and  if  it  be  the  only 
evidence  on  the  subject  it  will  be 
sufficient  to  support  a  decision. 
Hunt  v.  Patten,  33  N.  Y.  App. 
Div.  613,  53  N.  Y.  Supp.  1042. 

90  Culver  v.  Sisson,  3  N.  Y.  264; 
Weed  v.  Covill,  14  Barb.  242;  and 
see  1  Duer,  390.  To  the  contrary, 
Coor  v.  Grace,  10  Smedes  &  M. 
(Miss.)  434;  and  see  4  Q.  B.  182. 
And  in  such  case  it  has  been  held 
that  parol  evidence  that  the  trans- 
action was  a  loan  is  inadmissible. 
Waite  a.  Dimick,  10  Allen,  364. 
See  1  N.  Y.  R.  S.  738,  §  139. 

"Thorington  v.  Smith,  CHASE, 
Ch.  J.,  8  Wall.  1. 

92  As  to  what  kind  of  evidence 


of  intention  would  suffice,  see  Con- 
federate Note  Case,  19  Wall.  548, 
559.  Proof  of  promise  to  pay  in 
Indian  currency,  no  variance,  un- 
der declaration  alleging  promise 
to  pay  in  lawful  money  of  Great 
Britain.  Harrington  v.  MacMor- 
ris,  5  Taunt.  228.  See,  as  to  val- 
uation, Story  Confl.  of  L.,  §  310; 
Rice  v.  Ontario  Steamboat  Co., 
56  Barb.  384;  Gunther  v.  Colin, 
3  Daly,  125;  Colton  v.  Dunham, 
2  Paige,  267;  Stranaghan  v.  You- 
man,  65  Barb.  392;  R.  S.  of  U.  S., 
§§3564,  3565;  Schmidt  v.  Her- 
furth,  5  Robt.  124. 

Within  the  spirit  of  the  law  the 
borrower  is  bound  to  return  the 
amount  he  received,  with  lawful 
interest,  and  no  more.  Hall  v. 
Eagle  Ins.  Co.,  151  N.  Y.  App. 
Div.  815,  136  N.  Y.  Supp.  774. 

93  As  to  distinction  between  loan 


672 


ACTIONS   FOR   MONEY    LENT 


evidence  of  his  poverty  at  the  time  is  competent  as  tending 
to  disprove  it.94  But  upon  the  question  whether  the  loan 
was  made  to  the  defendant  or  another  person,  evidence  of 
the  insolvency  or  poverty  of  the  defendant  is  not  competent 
for  the  purpose  of  showing  that  the  credit  was  probably  not 
given  to  him,95  unless  it  appears  that  something  passed  be- 


and  gift,  see  Hick  v.  Keats,  4  B. 
&  C.  71;  Hill  v.  Wilson,  L.  R.  8  Ch. 
888,  and  chapter  V,  paragraphs 
117  to  124,  of  this  vol.  as  to  ad- 
vancements. 

Where  a  defendant  denied  that 
he  had  received  money  as  a  loan, 
it  was  held  that  the  fact  that  he 
was  a  stranger  to  the  plaintiffs, 
was  young  and  inexperienced  in 
business,  and  that  the  plaintiffs 
delayed  for  five  years  in  bringing 
an  action  on  short-time  notes 
which  they  contended  were  secur- 
ity for  the  loan,  was  evidence  of 
material  weight  in  favor  of  the 
defendant.  Meguiar  v.  Rainey, 
70  111.  App.  447. 

94  Bowling  v.  Dowling,  10  Ir. 
C.  L.  236;  Darling  v.  Westmore- 
land, 52  N.  H.  401,  s.  c.,  13  Am. 
Rep.  55,  and  cases  cited.  Whether 
the  alleged  borrower  may  support 
his  denial  by  proof  that  he  had  no 
need  to  borrow  is  disputed;  but 
where  he  has  been  allowed  to  do  so, 
the  other  party  may  rebut  it.  Thus 
where  defendant  testified  he  had  no 
need  to  borrow,  he  had  received 
money  from  A.,  proof  that,  on  the 
contrary,  after  the  alleged  loan 
he  remitted  money  to  A.  is  com- 
petent, Stolp  v.  Blair,  68  111.  541. 
On  the  question  whether  the  money 
used  to  pay  off  an  incumbrance  on 
defendant's  property  was  lent  to 


him  or  to  the  person  who  assumed 
to  act  as  his  agent  in  receiving  and 
applying  it,  defendant  may  prove 
that,  as  between  them  the  debt 
was  the  debt  of  such  agent.  Henry 
v.  Wilkes,  31  N.  Y.  562. 

Testimony  of  the  defendant  that 
at  the  time  the  loan  was  alleged 
to  have  been  made  his  financial 
circumstances  were  such  that  he 
did  not  need  money  was  held  com- 
petent. Sager  v.  St.  John,  109 
111.  App.  358. 

95  See  chapter  on  MONEY  PAID. 
To  make  an  exception  on  this  point 
available  it  should  be  specific.  61 
N.  Y.  630. 

In  determining  whether  or  not 
the  defendant  borrowed  any  money 
evidence  as  to  his  financial  cir- 
cumstances at  the  time  is  admis- 
sible. Sager  v.  St.  John,  109  111. 
App.  358. 

The  fact  that  the  defendant  had 
a  bank  account  is  not  admissible 
to  show  that  a  loan  was  made  on 
his  credit.  Ford  v.  McLane,  131 
Mich.  371,  91  N.  W.  Rep.  617. 

Evidence  that  the  defendant 
had  funds  in  bank  at  the  time  he 
was  alleged  to  have  taken  the  loan 
is  not  admissible.  Burke  v.  Kaley, 
138  Mass.  464;  Agat  v.  Apfelbaum, 
155  111.  App.  572. 

Where  the  plaintiff  is  the  step- 
father of  the  female  defendant, 


ACTIONS    FOR    MONEY    LENT 


673 


tween  the  parties  on  the  subject  of  pecuniary  responsibility.96 
Where,  however,  such  evidence  has  been  admitted  as  a  cir- 
cumstance tending  to  show  that  he  borrowed  it,  is  compe- 
tent for  him  to  show  in  rebuttal  that  he  borrowed  for  his 
wants  from  another  person.97  Evidence  of  the  defendant's 


having  married  her  mother,  and 
at  the  time  of  making  the  loans  for 
which  he  sues  he  was  living  in  their 
household,  the  relations  of  the 
parties  might  be  presumed  to  be 
those  of  members  of  the  same 
family,  wherein  friendly  offices 
were  exchanged,  gifts  and  other 
gratuities  made  and  received,  with- 
out expectation  of  repayment  or 
reward.  This  presumption  must 
yield  to  evidence  that  he  loaned 
them  the  money  which  they  claim 
he  gave  them,  and  that  they  re- 
garded him  as  a  boarder  rather  than 
as  a  member  of  the  family. 
Whether  a  mere  boarder  would 
be  likely  to  be  making  gifts  of 
large  sums  of  money  to  the  persons 
with  whom  he  was  boarding  is  a 
fair  question  for  argument  at  the 
trial.  Musk  v.  Hall,  34  R.  I.  126, 
82  Atl.  Rep.  593. 

The  borrower  cannot  prove  re- 
payment by  showing  that  he  has 
considerable  sums  of  money  in  his 
possession.  Experience  is  not  suf- 
ficiently uniform  to  raise  a  pre- 
sumption that  one  who  has  the 
means  of  paying  a  debt  will  actu- 
ally pay  it.  Atwood  v.  Scott,  99 
Mass.  177,  96  Am.  D.  728. 

For  the  purpose  of  showing  that 
a  check  drawn  to  the  order  of  an 
officer  of  the  defendant  college 
was  in  fact  a  loan  to  the  college, 
it  was  not  permissible  to  prove 


that  the  officer  was  a  priest  who 
had  taken  the  vows  of-  poverty 
and  could  not,  therefore,  possess 
property.  Reiner  v.  Augustinian 
College,  250  Pa.  St.  188,  95  Am. 
Rep.  395. 

96  Second   Nat.   Bank  v.  Miller, 
2  N.  Y.  S.  Ct.  (T.  &  C.)  107;  and 
see  63  N.  Y.  639;  Green  v.  Dis- 
brow,  56  N.  Y.  336,  rev'g  7  Lans. 
381. 

General  proof  as  to  man's  habits 
in  regard  to  the  use  of  money, 
e.  g.,  that  he  was  a  spendthrift,  is 
not  relevant  upon  the  question 
whether  he  made  a  particular 
promissory  note  or  not.  It  deals 
with  probabilities  or  possibilities 
too  remote'  from  the  issue.  Roe 
v.  Nichols,  5  N.  Y.  App.  Div.  472, 
38  N.  Y.  Supp.  1100. 

97  Burlew  v.   Hubbell,   1   Supm. 
Ct.  (T.  &  C.)  235. 

Under  a  general  denial  of  a  com- 
plaint in  an  action  for  money 
loaned  defendant  may  introduce 
testimony  that  the  money  was 
paid  as  a  gift  and  not  as  a  loan. 
Jenning  v.  Rohde,  99  Minn.  335, 
109  N.  W.  Rep.  597. 

Where  the  plaintiffs  claim  that 
the  defendant  borrowed  the  money 
for  her  individual  use,  she  is  en- 
titled to  show  not  only  that  it  was 
advanced  to  her  for  household 
expenses  but  that  it  was  used  for 
household  expenses.  Hawley  v. 


674  ACTIONS   FOR   MONEY    LENT 

declarations  at  about  the  time  of  the  transaction,  as  to  his 
pecuniary  affairs,  are  not  admissible; 98  nor  is  the  fact  that 
he  made  no  entry  in  his  books." 

22.  Illegality. 

To  defeat  the  action  on  the  ground  that  the  loan  was  made 
in  execution  or  in  furtherance  of  an  illegal  purpose,  it  is  not 
enough  to  show  that  the  lender  knew  of  an  illegal  purpose 
of  the  borrower  in  respect  to  the  application  of  the  money 
when  borrowed,  unless  the  lender  shared  the  intent.1  For 
the  purpose  of  establishing  such  intent,  parol  evidence  is 
competent  in  contradiction  or  variance  of  a  writing.2 

The  borrower's  abandonment  of  the  purpose,  without  any 
change  or  act  on  the  part  of  the  lender,  does  not  render  the 
illegal  loan  valid  so  that  the  lender  can  recover.3  Where 
the  loan  was  made  by  transferring  a  thing  in  action,  founded 
on  a  consideration  illegal  or  contrary  to  public  policy  as 
between  the  original  parties,  or  a  fund  which  was  the  pro- 
ceeds of  an  illegal  transaction  in  which  the  borrower  and  the 
lender  were  previously  engaged,  the  plaintiff  may  neverthe- 
less recover,  if  the  loan  was  a  new  transaction  the  assent  to 
which  did  not  involve  assent  to  the  previous  illegal  contract.4 

Levee,  139  N.  Y.  App.  Div.  569,  N.  E.  Rep.  430,  9  L.  R.  A.  657. 

124  N.  Y.  Supp.  24.  See  also  9  L.  R.  A.  657,  note. 

98  Douglass  v.  Mitchell,  35  Pemi.  Money  which  was  loaned  to  pay 

St.  440,  445.  for  losses   suffered   in   connection 

"Id.  with  dealing  in  "futures"  was  re- 

1  Bond    v.    Perkins,    4    Heisk.  coverable  where  the  lender  was  in 
(Tenn.)  364;  and  see  Gregory  v.  no  way  connected  with  the  spec- 
Wilson,  36  N.  J.  315,  s.  c.,  13  Am.  ulation.      Ballard    v.    Green,    118 
Rep.  448;  Earl  ».  Clute,  2  Abb.  N.  C.  390,  24  S.  E.  Rep.  777. 
Ct.  App.  Dec.  1.  2 1  Greenl.  Ev.  330,  note. 

It  has  been  held  that  it  was  not  z  Kingsbury  v.  Fleming,  66  N. 

enough  to  defeat  a  recovery  that  C.  524. 

the   lender   knew   the   borrower's  4  Wintermute    v.    Stimson,     16 

purpose.     He  must  have  been  in  Minn.  468;  Hamilton  v.  Canfield, 

some  way  implicated  as  a  confed-  2    Hall.    526;    Planters'    Bank    v. 

erate  in  the  specific  illegal  design  Union  Bank,   16   Wall.  483;   and 

under  contemplation.     Jackson  E.  see    Brooks    v.    Martin,    2   Wall. 

City  Xat.  Bank,  125  Ind.  347,  25  81. 


CHAPTER  XIII 


MONEY  PAID  TO  DEFENDANT'S  USE 


1.  Grounds  of  action. 

2.  Previous   request   or   previous 

promise  *to  reimburse. 

3.  Parol  evidence  to  vary  a  writ- 

ing. 

4.  Subsequent  promise   to  reim- 

burse. 

5.  Agent's    action    against    prin- 

cipal. 

6.  Obligation   to    pay   what   de- 

fendant ought  rather  to  have 
paid. 

7.  Surety's   action   against   prin- 

cipal or  co-surety. 

8.  Implied  promise  to  indemnify. 

9.  Action  between  parties  to  ne- 

gotiable paper. 
10.  Proof  of  payment. 


11.  — by  oral  evidence. 

12.  — by     producing     defendant's 

order  in  favor  of  third  per- 
son. 

13.  — by  plaintiff's  checks  or  ac- 

counts. 

14.  — by  the   payee's   receipt,   or 

surrender  of  evidence  of  debt. 

15.  Judgment  against  plaintiff  in 

action   of   which   defendant 
had  notice. 

16.  Medium  of  payment. 

17.  Amount. 

18.  Source  of  the  fund  paid. 

19.  Object  and  application  of  the 

payment. 

20.  Demand  and  notice. 

21.  Defenses. 


1.  Grounds  of  Action.5 

Plaintiff  must  show  his  payment 6  of  money  or  its  repre- 
sentative, to  the  use  of  defendant;  and  an  express  or  implied 
assent  on  the  part  of  defendant  to  the  making  of  the  pay- 


5  The  action  was  often  resorted 
to  at  common  law,  as  a  substitute 
for  a  bill  in  equity,  and  was  en- 
couraged wherever  equity  would 
compel  defendant  to  repay  to 
plaintiff  money  the  latter  had  been 
compelled  to  pay  for  his  benefit. 
Chan.  WALWORTH,  Wright  v.  But- 
ler, 6  Wend.  290. 

c  Under  a  complaint  for  money 
paid,  evidence  to  charge  defendant 
as  indorser  or  guarantor  cannot 


be  received.     Cottrell  v.  Conklin, 
4  Duer,  45. 

As  the  action  is  for  money  paid 
to  defendant's  use  actual  payment 
must  be  shown.  Tibbet  v.  Zur- 
buch,  22  Ind.  App.  354,  52  N.  E. 
Rep.  815. 

A  mere  agreement  to  pay  on  the 
part  of  the  plaintiff  is  not  enough. 
Schofield  v.  State  Nat.  Bk.,  97 
Fed.  Rep.  282,  38  Cir.  Ct.  App. 
179. 

675 


676 


MONEY   PAID    TO   DEFENDANT  S   USE 


ment;7  which  is  usually  proved  by  either  (1)  a  previous 
request,  or  (2)  a  subsequent  promise  to  reimburse,  or  (3) 
legal  compulsion  on  plaintiff  to  pay  what  defendant  ought 
to  have  paid,  or  (4)  other  circumstances  showing  that  he 
did  not  officiously  volunteer,  but  was  justified  in  making 
the  payment  without  express  assent;  and  then  the  law  is 
said  to  imply  a  request  or  promise.8  If  the  facts  which  thus 


7  Thus,  if  an  officer  holding  proc- 
ess against  a  defendant,  volun- 
tarily pays  it  himself,  he  cannot 
recover  the  amount  from  defend- 
ant (Jones  v.  Wilson,  3  Johns.  434; 
Beach  v.  Vandenburgh,  10  Id.  361) ; 
but,  if  he  pays  it  at  the  request  of 
the  defendant,  he  may  recover  it. 
Leonard  v.  Ware,  4  N.  J.  L.  (1 
South.)  150;  Moseley  v.  Boush,  4 
Rand.  (Va.)  392. 

"There  can  be  no  recovery  for 
the  voluntary  payment  of  the  debt 
of  a  third  party  without  request 
and  without  promise  of  repayment 
by  the  party  whose  debt  is  paid." 
McGlew  ».  McDade,  146  Cal.  553, 
80  Pac.  Rep.  695,  quoted  in  Ses- 
sions v.  Miller,  24  Cal.  App.  13, 
140  Pac.  Rep.  44.  See  also  Mcln- 
tyre  Bros.  &  Co.  v.  South  Atlantic 
Steamship  Line,  12  Ga.  App.  399, 
78  S.  E.  Rep.  347. 

Where  the  defendants'  agent 
embezzled  the  plaintiff's  money 
and  used  it  to  pay  the  defendants' 
taxes,  it  was  held  that  there  was 
no  cause  of  action  since  no  promise 
on  the  part  of  the  defendant  was 
shown  nor  a  knowledge  of  the 
agent's  unauthorized  act  upon 
which  a  ratification  could  be  pred- 
icated. Foote  v.  Cotting,  195 
Mass.  55,  80  X.  E.  Rep.  600,  15 
L.  R.  A.  X.  S.  693.  See  also  An- 


drews v.  Sibley,  220^VIass.  10,  107 
N.  E.  Rep.  395;  Kiendl  v.  Coch- 
rane,  153  App.  Div.  802,  138  N. 
Y.  Supp.  630. 

Where  the  defendant  in  a  tel- 
egram promised  to  reimburse  the 
plaintiff,  for  the  payment  of 
"  freightcharges,"  it  was  held  that 
there  was  an  implied  promise  to 
pay  the  expenses  of  demurrage  and 
unloading,  but,  if  not,  the  plaintiff 
was  nevertheless  entitled  to  re- 
cover on  the  express  promise  the 
amount  of  the  freight  charges  so 
paid.  Meneffe  v.  Bering  Mfg.  Co. 
166  S.  W.  Rep.  (Tex.  Civ.  App.) 
365. 

8  For  instance,  a  party  met  to 
dine  at  a  tavern,  and  after  dinner 
all  but  one  left  without  paying, 
whereupon  he  paid  for  all,  and  he 
was  allowed  to  recover.  8  East, 
614.  So  where  a  wife  dies  in  the 
absence  of  her  husband,  one  who 
humanely  pays  the  necessary  fu- 
neral expenses  may  recover  them 
of  the  husband.  Bradshaw  v. 
Beard,  12  C.  B.  X.  S.  344,  and  cases 
cited.  See  also  Exall  v.  Part- 
ridge, and  England  v.  Marsden, 
paragraph  6,  first  note.  The  rule 
forbidding  recovery  by  an  officious 
volunteer  has  lost  much  of  its  in- 
tended efficacy  to  prevent  one  man 
from  constituting  another  his 


.MONEY    PAID    TO    DEFENDANT'S    USE 


677 


debtor  without  the  latter's  con- 
sent, since,  in  most  cases,  of  pre- 
existing liability,  one  may  now 
take  an  assignment  and  sue  as  as- 
signee. In  that  case  the  action 
will  not  be  for  money  paid,  but  on 
the  original  demand.  The  rule 
still  applies  (1)  where  the  demand 
was  not  assigned  but  satisfied,  (2) 
where  it  was  not  assignable  in  its 
nature,  (3)  where  it  was  con- 
tracted or  created  only  by  plain- 
tiff's act.  Where  the  demand  was 
assignable,  and  the  evidences  of  it 
were  delivered  up  to  plaintiff,  an 
assignment  may  be  presumed,  in 
furtherance  of  justice,  if  there  was 
any  privity  between  plaintiff  and 
defendant.  See  p.  2  of  this  vol.; 
and,  for  instances,  Duffy  v.  Dun- 
can, 32  Barb.  587;  Mills  v.  Watson, 
1  Sweeny,  374. 

One  cannot  recover  for  a  vol- 
untary payment  made  for  another. 
Matter  of  Hotchkiss,  44  N.  Y. 
App.  Div.  615,  60  X.  Y.  Supp.  168; 
Matter  of  Rider,  68  X.  Y.  Misc. 
270,  124  X.  Y.  Supp.  1001;  Mings 
i).  Griggsby  Cons.  Co.,  106  S.  W. 
Rep.  (Tex.  Civ.  App.)  192;  Brown 
r.  Fales,  139  Mass.  21,  29  X.  E. 
Rep.  211;  Donovan-McCormick 
Co.  v.  Sparr,  34  Mont,  237,  85  Pac. 
Rep.  1029;  McGlew  v.  McDade, 
146  Cal.  553,  80  Pac.  Rep.  695; 
Little  Bros.  Fertilizer,  etc.,  Co.  v. 
Wilmott,  44  Fla.  166,  32  So.  Rep. 
808;  Trippensee  v.  Braun,  104  Mo. 
App.  628,  78  S.  W.  Rep.  674;  Mor- 
ley  v.  Carlson,  27  Mo.  App.  5; 
Allen  v.  Bobo,  81  Miss.  443,  33  So. 
Rep.  288;  Helm  v.  Smith-Fee  Co., 
76  Minn.  328,  79  X.  W.  Rep.  313; 
Manning  v.  Poling,  114  la.  20,  83 


X.  W.  Rep.  895,  86  X.  W.  Rep.  30; 
Kiendl  r.  Cochrane,  153  N.  Y. 
App.  Div.  802,  138  X.  Y.  Supp. 
630;  Louisville,  etc.,  R.  Co.  v. 
Central  Kentucky  Traction  Co., 
147  Ky.  513,  144  S.  W.  Rep.  739; 
Hilliard  v.  Douglas  Oil  Fields,  20 
Wyo.  201,  122  Pac.  Rep.  626;  Ill- 
inois, etc.,  R.  Co.  v.  Cleveland,  etc., 
R.  Co.,  157  111.  App.  102;  Holly 
St.  Land  Co.  v.  Beyer,  46  Wash. 
422,  93  Pac.  Rep.  1065;  Briggs  p. 
Barnett,  108  Va.  404,  61  S.  E.  Rep. 
797. 

One  who  makes  a  voluntary  pay- 
ment, without  a  previous  request 
or  a  subsequent  promise,  cannot 
recover.  Boyer  v.  Richardson,  52 
Neb.  156,  71  X.  W.  Rep.  981. 

Xo  one  can  make  himself  the 
creditor  of  another  by  the  unsolic- 
ited payment  of  his  debts.  Kelly 
v.  Linsey,  7  Gray,  287;  Owen  Creek 
Presbyterian  Church  v.  Taggart, 
44  Ind.  App.  393,  89  X.  E.  Rep. 
406;  Trippensee  v.  Braun,  104  Mo. 
App.  628,  78  S.  W.  Rep.  674;  Iowa 
Homestead  Co.  v.  Des  Moines 
Nav.,  etc.,  R.  Co.,  17  Wallace,  153, 
21  L.  ed.  622. 

There  must  be  an  express  or  im- 
plied request  by  the  defendant  or 
his  agent,  otherwise  the  action  will 
not  lie.  Oliver  v.  Camp,  6  Ala. 
App.  232,  62  So.  Rep.  469;  Mc- 
Intyre  v.  South  Atlantic  S.  S.  Line, 
12  Ga.  App.  399,  78  S.  E.  Rep.  347; 
Xewell  v.  Hadley,  206  Mass.  335, 
92  N.  E.  Rep.  507,  29  L.  R.  A.  X. 
S.  908. 

A  stranger  who  pays  the  debt  of 
another,  without  his  knowledge 
and  authority,  cannot  sue  the 
debtor  for  the  money  paid  for  his 


678 


MONEY    PAID    TO    DEFENDANT  S    USE 


use,  unless  the  debtor  has  ratified 
the  act  of  the  stranger  by  promis- 
ing to  repay  him  the  amount,  or 
in  some  other  manner.  Neely  v. 
Jones,  16  W.  Va.  625,  37  Am.  Rep. 
794. 

Where  a  city  pays  for  the  re- 
pairing of  a  street  which  it  had  no 
authority  to  repair,  such  payment 
is  voluntary  and  not  recoverable. 
Chicago  v.  Pittsburg,  etc.,  Ry.  Co., 
242  111.  30,  89  X.  E.  Rep.  648. 

The  action,  being  an  equitable 
one,  lies  only  when  in  equity  the 
defendant  should  return  the  money. 
Foresters'  Bldg.,  etc.,  Ass'n.  v. 
Quinn,  119  111.  App.  572;  Langdon 
r.  Hughes,  113  111.  App.  203. 

An  action  for  money  paid  out 
for  the  benefit  of  another  is  founded 
upon  equitable  principles.  No 
privity  of  contract  "between  the 
parties  is  required  except  that 
which  results  from  circumstances 
showing  an  equitable  obligation. 
Commercial  Nat.  Bk.  v.  Sloman, 
121  N.  Y.  App.  Div.  874,  106  N. 
Y.  Supp.  508;  Roberts  v.  Ely,  113 
X.  Y.  128,  20  X.  E.  Rep.  606. 

Unless  there  is  an  agreement 
to  repay  there  can  be  no  recovery. 
Bloom  r.  Gourlay,  35  Pa.  Super. 
Ct.  116;  Helm  v.  Smith-Fee  Co., 
76  Minn.  328,  79  N.  W.  Rep. 
313. 

Where  the  plaintiff  does  not  of- 
ficiously interfere  with  the  affairs 
of  the  defendant  but  acts  in  ful- 
fillment of  a  supposed  obligation 
with  the  result  that  it  relieves  the 
defendant's  land  from  an  assess- 
ment lien  thereon,  and  aids  the  de- 
fendant to  perform  a  contract  to 
convey  free  and  clear  of  encum- 


brances, the  plaintiff  is  entitled  to 
the  equitable  relief  of  being  sub- 
rogated  to  the  lien  of  the  assess- 
ments. Title  Guarantee,  etc.,  Co. 
v.  Haven,  196  N.  Y.  487,  89  N.  E. 
Rep.  1082,  1085,  25  L.  R.  A.  X.  S. 
1308,  17  Ann.  Gas.  1131. 

An  insurance  agent  has  a  good 
cause  of  action  against  a  policy- 
holder  whose  premium  he  paid  at 
his  request.  Baum  v.  Parkhurst, 
26  111.  App.  128. 

Where  a  creditor  insures  the 
life  of  his  debtor,  the  debtor  can- 
not be  made  to  pay  the  premiums 
unless  there  was  an  agreement  that 
he  should  pay  them.  Stacy  r. 
Parker,  132  S.  W.  Rep.  (Tex.  Civ. 
App.)  532. 

Where  one  pays  the  premiums 
on  an  insurance  policy  as  to  which 
she  has  been  wrongly  informed  by 
the  insurance  agent  that  she  is  the 
beneficiary,  she  may  recover  the 
premiums  paid  from  the  true  ben- 
eficiary who  has  collected  the  pro- 
ceeds of  the  policy.  Monast  r. 
Marchant,  72  Atl.  Rep.  (R.  I.) 
820. 

One  who  contracts  with  an  un- 
dertaker to  pay  for  the  funeral  of 
a  deceased  cannot  recover  from 
the  executor  the  full  amount  of 
the  funeral  bill  where  such  bill  ex- 
ceeds the  reasonable  funeral  ex- 
penses; and  having  contracted 
with  the  undertaker  he  is  liable  to 
him  for  the  excess.  Ruggiero  v. 
Tufani,  54  N.  Y.  Misc.  497,  104 
N.  Y.  Supp.  691. 

Where  the  conduct  of  one  who 
arranges  and  pays  for  a  funeral  is 
inconsistent  with  an  intention  to 
seek  repayment,  the  action  will 


MONEY    PAID    TO    DEFENDANT  S    USE 


679 


raise  an  implied  request  or  promise  are  alleged,  an  allegation 
of  the  request  or  promise  is  not  necessary.9 

"2.  Previous  Request,  or  Previous  Promise  to  Reimburse. 

It  is  not  necessary  to  prove  that  the  request  or  promise 
was  formally  expressed;  it  may  be  inf erred  from  circum- 
stances,10 and  the  relation  of  the  parties  (principal  and  agent, 
for  instance)  ' '  often  supplies  the  place  of  a  specific  request. 

If  the  request  or  promise  was  made  by  a  third  person, 


not  lie.  Matter  of  Moran,  75 
N.  Y.  Misc.  90,  134  N.  Y.  Supp. 
968. 

It  is  essential  that  a  request  on 
the  part  of  the  person  benefited 
to  make  such  payment,  either  ex- 
pressed or  fairly  implied  from  the 
circumstances  of  the  case,  should 
be  shown.  Sterling  v.  Chelsea 
Marble  Works,  62  N.  Y.  Misc.  626, 
115  N.  Y.  Supp.  1096. 

9  Farron  v.  Sherwood,  17  N.  Y. 
227;  Cobb  v.  Charter,  32  Conn. 
358;  Pomeroy  on  Rem.,  §  517,  &c., 
and  cases  cited. 

To  sustain  a  recovery  for  money 
paid  for  defendant's  use,  it  must 
be  alleged  and  proved  that  the 
money  was  paid  upon  the  defend- 
ant's request,  express  or  implied. 
Huff  r.  Simmers,  114  Md.  548, 
79  Atl.  Rep.  1003;  Hathaway  v. 
Delaware  County,  103  X.  Y.  App. 
Div.  179,  93  X.  Y.  Supp.  436,  mod- 
ified in  185  X.  Y.  368,  78  X.  E. 
Rep.  153,  113  Am.  St.  Rep.  909, 
13  L.  R.  A.  X.  S.  273;  Savage  v. 
McCorkle,  17  Ore.  42,  21  Pac.  Rep. 
444:  Contoocook  Fire  Precinct  v. 
Hopkinton,  71  X.  H.  574,  53  Atl. 
Rep.  797. 

If  the  plaintiff  paid  the  money 


at  the  defendant's  request  the  ac- 
tion will  lie.  McXerney  v.  Barnes, 
77  Conn.  155,  58  Atl.  Rep.  714; 
Chamberlain  v.  Lesley,  39  Fla.  452, 
22  So.  Rep.  736. 

Circumstantial  evidence  is  com- 
petent to  prove  that  the  plaintiff 
paid  the  money  at  the  defendant's 
request,  express  or  implied.  Priest 
v.  Hale,  155  Mass.  102,  29  X.  E. 
Rep.  197. 

10  Thus,  where  the  plaintiff  ac- 
companied   the    defendant    when 
the  latter  was  making  a  purchase, 
and  said  in  his  presence,  to  the 
shopkeeper,  "if  he  does  not  pay 
for  it  I  will,"  and  defendant  was 
silent,  it  was  held  that,  although 
the  promise  was  void  for  not  being 
in    writing,    yet    plaintiff    having 
paid,  as  in  honor  bound,  on  de- 
fendant's   default,    his    payment 
might  be  deemed  made  at  defend- 
ant's request.    Alexander  v.  Vane, 
1  M.  &  W.  511. 

Where  the  money  was  paid  with 
the  intention  of  its  being  a  loan, 
the  law  implies  an  agreement  to 
repay.  Hall  ».  O'Connell,  52  Ore. 
164,  95  Pac.  Rep.  717,  96  Pac. 
Rep.  1070. 

11  Paragraph  5. 


680 


MONEY   PAID    TO    DEFENDANTS   USE 


there  must  be  something  to  show  that  he  was  authorized 
to  bind  the  defendant.12  Where  several  persons  are  associ- 
ated for  a  common  purpose,  but  not  being  partners,  a  re- 
quest made  by  one  to  advance  money  for  the  benefit  of  all 
is  enough,  if  there  be  circumstances  from  which  his  agency 
for  the  others  may  be  inferred.13 

Where  a  previous  request  is  proved,  it  is  not  necessary' 
to  prove  that  the  payment  was  beneficial  to  the  defendant; 
he  is  equally  liable  whether  it  discharged  a  debt  of  his  or 
constituted  a  loan  or  gift  to  a  third  person.14  The  evi- 


"Burdick  v.  Glass  Co.,  11  Vt. 
19;  McElroy  r?.  Melear,  7  Coldw. 
(Tenn.)  140;  Martin  v.  Peters, 
4  Robt.  434.  See  last  chapter. 

If  the  request  was  made  by 
some  one  who  had  no  authority 
to  bind  the  defendant  the  action 
will  not  lie.  Little  Bros.  Fertilizer 
Co,  r.  Wilmott,  44  Fla.  166,  32 
So.  Rep.  808;  Allen  v.  Bobo,  81 
Miss.  443,  33  So.  Rep.  288. 

The  burden  of  proof  is  on  the 
plaintiff  to  show  the  promise  to 
repay.  Fallon  v.  Vandesand,  136 
Wis.  246,  116  N.  W.  Rep.  176. 

13  Whether  the  mere  relation  of 
joint  contractors  in  an  enterprise 
is  enough  to  make  the  request 
of  one  support  an  action  for  money 
paid  for  all  is  not  agreed.  Trades- 
man's Bank  v.  Astor,  11  Wend. 
87;  Porter  v.  McClure,  15  Id.  191; 
Chrisman  v.  Long,  1  Ind.  212; 
and  see  Bassford  v.  Brown,  22 
Me.  9;  Moss  v.  Jerome,  10  Bosw. 
220.  The  true  principle  seems  to 
be  that,  among  persons  who  have 
consented  to  share  a  common  re- 
sponsibility, there  is  prima  facie 
authority  in  each  from  each  other 
to  di  charge  the  common  burden. 


Add.  on  Contr.  bk.  2,  ch.  8,  §2. 
The  distinction  is  between  au- 
thority to  incur  liability — which 
is  not  presumed — and  authority 
1o  discharge  any  liability  duly 
assumed.  See  Chapter  VII,  para- 
graphs 5  and  6,  of  this  vol.  and 
notes.  Thus,  where  several  per- 
sons jointly  employ  attorney  or 
counsel  (Edger  r.  Knapp,  6  Scott 
N.  R.  713),  or  agree  on  an  ar- 
bitrator without  fixing  the  liabil- 
ity for  expenses,  and  one  pays 
the  expenses  in  order  to  take  up 
the  award,  he  may  recover  one- 
half.  Marsack  v.  Webber,  6  Hurls. 
A:  X.  1. 

Where  the  assignee  of  part  of  a 
lease  pays  the  whole  rent  there  is 
an  implied  promise  on  the  part  of 
the  owners  of  the  balance  of  the 
lease  to  refund  the  proportionate 
amount  paid.  Johnson  v.  Zufeldt, 
56  Wash.  5,  104  Pac.  Rep.  1132. 

14  Brittain  v.  Lloyd,  14  M.  &  W. 
762;  Emery  v.  Hobson,  62  Me. 
578,  s.  c.,  16  Am.  Rep.  513.  But  if 
the  payment  was  solely  for  the 
benefit  of  the  plaintiff  himself, 
as  where  A.  promised  B.  to  share 
the  costs  of  a  suit  on  behalf  of  B. 


MONEY    PAID    TO    DEFENDANT  S    USE 


681 


dence  must  bring  the  payment  within  the  scope  of  the 
request.15 

3.  Parol  Evidence  to  Vary  a  Writing. 

If  the  plaintiff  proves  a  written  contract  with  defendant, 
which  expressly  or  in  effect  required  plaintiff  to  bear  the 
expense  in  question,  plaintiff  cannot  prove  a  parol  agree- 
ment made  at  the  same  time,  that  the  defendant  would  pay 
it;  J6  but  he  may  prove  such  an  agreement  made  prior  to  the 
written  obligation,  unless  it  be  such  as  was  merged  in  the 
latter.17  So  he  may  prove  a  parol  request  or  promise  not 


if  B.  would  bring  it,  as  it  did  not 
appear  that  A.  could  have  had  any 
interest  in  the  result — Held,  that 
B.  could  not  recover  on  the  prom- 
ise without  proof  that  his  bringing 
the  suit  was  induced  by  the  prom- 
ise. Knox  v.  Martin,  8  N.  H.  154. 

Where  money  has  been  paid  for 
the  use  of  the  defendant,  the  re- 
quest necessary  may  be  either  ex- 
press or  implied.  It  will  be  im- 
plied as  well  as  the  promise,  where 
the  defendant  has  adopted  and 
enjoyed  the  benefit  of  the  con- 
sideration. Lee  v.  Virginia,  etc., 
Bridge  Co.,  18  W.  Va.  299. 

The  fact  that  the  plaintiff  was 
benefited  by  the  expenditure  of 
his  own  money  is  immaterial.  De- 
vecmon  ».  Shaw,  69  Md.  199,  14 
Atl.  Rep.  464,  9  Am.  St.  Rep.  422; 
Meyer  v.  Livesley,  56  Ore.  383, 
107  Pac.  Rep.  476,  108  Pac.  Rep. 
121. 

15  Thus  to  charge  defendant  on  a 
promise  to  pay  what  may  be  needed 
for  the  support  of  a  minor,  beyond 
his  wages,  there  must  be  proof  that 
he  needed  the  money  paid.  Merritt 
v.  Seaman,  6  X.  Y.  168. 


Where  plaintiff  testifies  that  he 
expended  moneys  at  defendant's 
request,  and  the  defendant  denies 
it  and  so  testifies,  and  the  defend- 
ant also  produces  witnesses  who 
testify  that  plaintiff's  general  rep- 
utation for  truth  and  veracity  is 
bad  and  that  he  is  not  to  be  be- 
lieved under  oath,  a  judgment 
in  favor  of  the  plaintiff  will  be 
reversed  as  against  the  prepond- 
erance of  evidence.  Enright  v. 
Seymour,  4  N.  Y.  Misc.  597,  24 
N.  Y.  Supp.  704. 

16  Thus  where  builders,  in  order 
to  complete  work  they  had  con- 
tracted in  writing  to  do,  paid  a 
license  fee — Held,  that  they  could 
not  give  parol  evidence  of  a  con- 
temporaneous promise  of  the  em- 
ployer to  pay  it.    They  must  per- 
form  their   written   contract.     If 
they  were  not  bound  to  make  the 
payment,  they  would  be  justified 
in    ceasing   work   because   of    his 
neglect  to  pay  it.    Thorp  v.  Ross, 
4  Abb.  Ct.  App.  Dec.  416,  WOOD- 
BUFF,  J. 

17  Thus    one   of   several   jointly 
bound,  or  one  of  several  co-sureties, 


682 


MONEY   PAID    TO   DEFENDANT  S   USE 


contradicting  or  varying  the  legal  effect  of  the  instrument, 
though  it  formed  the  consideration,18  or  a  usage  which  adds 
another  term  to  the  agreement.19  In  other  words,  the  entire 
agreement  may  be  proved,  notwithstanding  a  part  of  it 
was  reduced  to  writing.20  So  he  may  prove  a  parol  request 
or  promise  made  as  a  condition  of  delivering  the  instrument.21 
Where  an  express  promise  is  proved,  the  fact  that,  at  the 
time  of  making  it,  the  parties  agreed  to  reduce  it  to  writing, 
but  never  did  so,  does  not  defeat  the  action.22 

4.  Subsequent  Promise  to  Reimburse. 

Where  the  plaintiff's  payment  was  wholly  voluntary  or 
officious,  he  may  recover  on  proof  of  a  promise  23  to  reim- 


suing  another  for  indemnity,  may 
prove  a  parol  agreement  made  at 
or  prior  to  their  written  obligation, 
that  defendant  would  indemnify 
him.  Barry  v.  Ransom,  12  N.  Y. 
462;  Robinson  v.  Lyle,  10  Barb. 
512. 

18  See  linger  v.  Jacobs,  7  Hun, 
220,  and  cases  cited. 

19  See,  for  this  principle,  Broom's 
Phil,  of  the  Law,  83,  etc.,  and  cases 
cited;  Seago  v.  Deane,  4  Bing.  459. 

211  See  Hope  v.  Balen,  58  N.  Y. 
380,  affi'g  35  Super.  Ct.  (J.  &  S.) 
458.  Compare  Johnson  v.  Oppen- 
heim,  55  N.  Y.  280,  affi'g  35  Super. 
Ct.  (J.  &  S.)  440;  Brewers'  Fire 
Ins.  Co.  v.  Burger,  10  Hun,  58, 
and  cases  cited. 

21  See  Remington  v.  Palmer,  62 
N.  Y.  31,  rev'g  1  Hun,  619,  s.  c., 
4  Supm.  Ct.  (T.  &  C.)  696. 

Likewise,  a  plaintiff  was  allowed 
to  prove  an  oral  promise,  made  by 
the  defendants,  to  pay  him  a  cer- 
tain sum  of  money  on  the  condi- 
tion that  he  convey  his  land  to  a 
corporation  which  the  defendants 


were  interested  in  having  locate  in 
their  town.  Birch  v.  Baker,  85 
N.  J.  Law,  660,  90  Am.  Rep.  297, 
L.  R.  A.  1916,  D.  485. 

"  Stover  v.  Flack,  30  N.  Y.  64. 

Where  the  plaintiff  relies  upon 
an  authorization  expressed  in  a 
telegram,  which  the  defendant 
denies  having  sent,  the  burden  is 
upon  the  plaintiff  to  either  pro- 
duce the  original  message  signed 
by  the  defendant,  or  to  prove  by 
one  of  the  operators  that  such  mes- 
sage (now  lost)  was  signed  and 
directed  by  the  defendant  to  be 
sent.  Fox  v.  Pedigo,  19  Ky.  Law 
Rep.  271,  40  S.  W.  Rep.  249. 

23  An  express  promise,  made  not 
to  the  plaintiff,  but  to  another 
person  who  was  privy  to  the  trans- 
action, is  enough.  Hassinger  v. 
Solms,  5  S.  &  R.  4.  But  a  mere 
admission  to  a  stranger  is  not. 

If  there  is  a  request,  express  or 
implied,  from  that  the  law  im- 
plies the  requisite  promise  to  re- 
pay; and  if  there  was  a  subsequent 
express  promise  to  repay,  from  that 


MONEY    PAID    TO    DEFENDANT'S   USE 


683 


burse,  founded  on  sufficient  consideration.  There  is  sufficient 
consideration  within  this  rule,  if  the  precedent  payment  was 
beneficial  to  defendant,24  or  if  it  discharged  a  legal  obliga- 
tion against  him,  or  if  it  discharged  what  the  law  recognizes 
as  a  moral  obligation.25  It  is  not  essential  to  show  an  ex- 
press promise,  except  where  the  only  consideration  was  a 
moral  obligation;  but  the  promise  may  be  inferred  by  the 
jury  from  an  account  rendered  to  which  no  objection  was 
made.26  A  promise  made  by  one  of  several  former  partners 
after  dissolution  is  not  enough  as  against  the  others.27  In 
the  case  of  joint  debtors  not  partners,  a  promise  by  one  is  not 


the  law  implies  the  requisite  pre- 
vious request.  North  v.  North, 
63  111.  App.  129,  aff'd  in  166  111. 
179,  46  N.  E.  Rep.  729. 

24  Thus  if  one  by  mistake  pays 
his  neighbor's  tax,  this  is  a  good 
consideration  for  a  promise  by  the 
latter  to  repay.    Nixon  v.  Jenkins, 
1  Hilt.  318;  but  plaintiff  must  prove 
a  legal  tax.    Weinberger  v.  Fauer- 
bach,  14  Abb.  Pr.  N.  S.  91.    The 
defendant's  promise  to  repay  one 
who  volunteered  to  pay.  an  exe- 
cution may  be  implied  from  the  de- 
fendant's insisting  on  the  payment 
as    satisfaction,    and    having    the 
execution  quashed  in  consequence. 
Roundtree   v.   Holloway,    13   Ala. 
N.  S.  357. 

But  see  Massachusetts  Mut. 
Life  Ins.  Co.  ».  Green,  185  Mass. 
306,  70  N.  E.  Rep.  202,  where  the 
plaintiff  paid  the  defendant's  taxes 
believing  that  he  was  paying  taxes 
upon  his  own  land.  It  was  held 
that  a  subsequent  promise  by  the 
defendant  to  reimburse  the  plain- 
tiff was  without  consideration  and 
hence  unenforceable. 

25  As  to  what  constitutes  a  moral 


obligation,  see  Goulding  v.  David- 
son, 26  N.  Y.  604,  rev'g  28  Barb. 
438,  and  cases  cited;  Freeman  v. 
Robinson,  9  Vroom,  383,  s.  c.,  20 
Am.  Rep.  399.  If  the  original  con- 
sideration was  beneficial,  and 
plaintiff  was  legally  liable  to  pay, 
defendant's  subsequent  promise  to 
repay  will  sustain  an  action,  al- 
though it  was  made  after  he  had 
once  been  wholly  exonerated.  Has- 
singer  v.  Solms,  5  S.  &  R.  4. 

To  maintain  an  action  for  money 
paid  for  the  defendant  it  was  held 
necessary  for  the  plaintiff  to  show 
the  defendant's  liability  on  the 
debt  which  was  paid.  Mobile 
Light  &  R.  Co.  v.  S.  D.  Copeland  & 
Son,  73  So.  Rep.  (Ala.)  131. 

26  See    Quincey    v.    White,    63 
N.  Y.  370,  and  cases  cited;  Coe 
v.  Hutton,  1  Serg.  &  R.  398;  Mc- 
Lellan  v.  Longfellow,  34  Me.  552. 

27  Baker  v.  Stackpoole,  9  Cow. 
420;  Van  Keuren  v.  Parmelee,  2 
N.   Y.   523;   McElroy  v.   Melear, 
7  Coldw.    (Tenn.)   140.     But  see, 
for    authorities    contra,    notes    to 
paragraphs  33  and  34  of  chapter 
IX,  of  this  vol. 


(584 


MONEY    PAID    TO    DEFENDANT  S    USE 


enough  as  against  the  others  to  revive  a  legal  obligation  once 
barred.28 


5.  Agent's  Action  against  Principal. 

A  request  or  agency  is  not  presumed  from  the  mere  fact 
that  plaintiff  paid  defendant's  debt;  29  and  agency  being 
shown,30  the  agent  must  show  payments  pursuant  to  his 
instructions  or  within  his  authority.  In  an  action  for  money 
paid  he  cannot  recover  for  property  bought  by  himself  as 
his  own,  and  afterward  transferred  to  account  of  his  prin- 
cipal.31 On  the  question  whether  the  act  of  the  agent  was 


28  Lewis  v.  Woodworth,  2  N.  Y. 
512.    Whether  it  is  enough  in  any 
other  case,  see  chapter  VII,  para- 
graph 6,  of  this  vol. 

29  Stephens  v.  Broadnax,  5  Ala. 
X.  S.  258. 

30  As  to  how  far  circumstantial 
evidence  of  agency  is  competent, — 
see  Richards  v.  Millard,  56  X.  Y. 
574,  rev'g  1  Supm.  Ct.  (T.  &  C.) 
247.    The  agency,  though  it  be  in 
the    purchase    of    land,    may    be 
proved  by  parol.    Baker  v.  Wain- 
wright,    36    Md.    336.      Compare 
Levy  v.  Brush,  45  X.  Y.  589,  rev'g 
8  Abb.  Pr.  X.  S.  418.     The  fact 
that  plaintiff  acted  as  ship's  hus- 
band is  sufficient  prima  facie  evi- 
dence of  his  appointment;  and  if 
an    owner    relies    on    his    refusal 
to    be    answerable    for    expenses 
incurred,  he  must  show  that  his 
notice  was  given  before  the  work 
was     commenced.       Chappell     v. 
Bray,  6  H.  &  X.  145. 

"An  agency  to  pay  the  debts 
of  a  principal  with  the  resources 
of  the  agent  is  not  one  greatly  to 
be  desired  by  the  agent,  nor  one 
which  should  be  imposed  on  an 


unwilling  victim  of  such  an  under- 
taking, on  doubtful  and  conflicting 
testimony."  Angle  v.  Manchester, 
3  Xebr.  (Unoff.)  252,  91  X.  W. 
Rep.  501. 

Where  a  stranger  indorses  the 
individual  note  of  an  agent  and 
then  sues  the  principal  for  money 
paid  to  the  latter's  use,  parol  evi- 
dence may  be  introduced  to  show 
that  the  agent  was  acting  in  his 
representative  capacity  when  he 
obtained  the  indorsement.  Sauer 
v.  Brinker,  77  Mo.  289. 

"Field  v.  Syms,  2  Robt.  35, 
s.  P.,  Beck  v.  Ferrara,  19  Mo.  30. 
Xot  even  on  proof  of  a  usage  of  his 
trade  to  do  so,  not  shown  to  be 
known  to  defendant.  Day  v. 
Holmes,  103  Mass.  306. 

According  to  Hoy  v.  Reade,  1 
Sweeny  626,  an  agent  employed 
to  purchase  goods,  and  suing  to 
recover  his  advances  and  charges, 
makes  a  prima  facie  case  by  proof 
of  a  purchase  pursuant  to  princi- 
pal's direction,  the  amount  ex- 
pended therefor,  and  the  disburse- 
ments, charges  and  commissions, 
and  that  the  same  were  necessary 


MONEY    PAID    TO    DEFENDANT'S    USE 


685 


done  hi  good  faith  in  pursuance  of  his  supposed  duty,  the 
information  and  advice  upon  which  he  acted  is  competent 
as  part  of  the  res  gestce.32  For  the  purpose  of  showing  the 
manner  of  executing  the  defendant's  order,  the  plaintiff's 
instructions  to  those  by  whom  he  carried  it  out,  his  letters 
to  a  sub-agent,  etc.,  are  competent  in  his  own  favor  as  part 
of  the  res  gestce.™  If  it  is  shown  that  he  acted  in  good  faith, 


aud  usual;  and  if,  before  action 
brought  by  the  agent,  he  has 
wrongfully  converted  the  goods 
purchased,  such  conversion  does 
not  defeat  the  action,  unless  the 
principal,  if  he  still  remain  the 
owner  of  the  property,  counter- 
claims the  value.  According  to 
the  opinion  of  MILLER,  J.,  in  Rosen- 
stock  v.  Tormey,  32  Md.  169,  s.  c., 
3  Am.  Rep.  125,  in  a  stockbroker's 
action  to  recover  deficiency  on 
resale  by  him,  on  his  principal's 
default,  of  stock  bought  on  his 
order,  plaintiff  must  prove  actual 
purchase  and  notice  to  defendant 
thereof  given  at  a  time  when  he  or 
his  agents  had  the  stock  or  the 
proper  indicia  of  title  actually  in 
hand  and  ready  to  be  delivered; 
and  that,  upon  such  notice  and 
request  for  payment  of  price  and 
commissions,  the  defendant  did 
not  pay  for  the  stock,  and  that, 
after  reasonable  time  and  giving 
notice  of  intent  to  resell,  the  stock 
was  actually  sold,  either  at  public 
auction  or  at  a  sale  publicly  and 
fairly  made  at  the  stock  exchange 
or  board  where  such  stocks  were 
usually  sold,  at  its  fair  market 
price  on  the  day  of  sale.  It  is  not 
necessary  to  prove  a  tender,  nor 
to  prove  a  resale  at  a  public  stock 
board  [citing  25  Md.  242];  but 


while  evidence  of  the  usage  of 
dealers  in  stocks  is  admissible, 
(if  the  broker  was  not  limited  to  a 
specified  authority),  to  show  the 
manner  in  which  the  order  may  be 
performed,  it  is  not  admissible  to 
set  up  against  one  not  shown  to  be 
cognizant  of  the  usage,  a  usage 
which  the  law  deems  unreason- 
able; e.  g.,  a  fictitious  purchase  or 
sale.  Id.  The  plaintiff  need  not 
show  affirmatively  that  those  from 
whom  he  purchased  were  actually 
in  possession  of  the  stock  at  the 
time  of  the  purchase,  in  order  to 
prevent  the  stock-jobbing  act  from 
rendering  the  contract  void.  Genin 
v.  Isaacson,  6  N.  Y.  Leg.  Obs.  213. 
Likewise,  where,  after  an  agent 
had  secured  a  loan  for  its  principal 
with  which  to  pay  off  the  latter's 
mortgages,  it  neglected  to  pay  off 
one  mortgage  before  it  was  fore- 
closed, it  was  held  that  it  could  not 
recover,  in  an  action  for  money 
paid  to  the  defendant's  use,  the 
foreclosure  costs  and  expenses  of 
redemption.  Veltum  v.  Koehler, 
85  Minn.  125,  88  N.  W.  Rep.  432. 

32  See    Law  v.   Cross,    1    Black 
533,  539. 

33  Rosenstock  v.  Tormey,  32  Md. 
169,  s.  c.,  3  Am.  Rep.  131.     See 
Tyng  v.  Woodward,  121  Md.  422,  88 
Am.  Rep.  243.    But  his  sub-agent's 


686 


MONEY    PAID    TO   DEFENDANT  S   USE 


supposing  that  he  was  acting  under  the  instructions  and  for 
the  interest  of  his  principal,  the  latter,  if  he  received  the 
benefit  of  the  transaction,  must  show  that,  when  he  was  in- 
formed of  the  act,  he  gave  notice  of  his  repudiation  of  it 
within  a  reasonable  time.34  What  is  a  reasonable  time  is  a 
question  for  the  court,  if  the  facts  are  undisputed;  but  if  the 
evidence  is  conflicting,  it  is  a  mixed  question  of  law  and  fact, 
and  the  court  should  instruct  the  jury  upon  the  several  hy- 
potheses insisted  on  by  the  parties.35  Costs  and  expenses 
for  which  the  agent  has  been  held  liable  to  third  persons, 
when  acting  in  good  faith  and  without  fault,  on  behalf  of  his 
principal,  he  may  pay  and  recover  from  the  latter  without 
proof  of  a  special  request  or  authority  to  pay  them.36  The 
fact  of  advances  having  been  shown,  an  account  rendered 
by  plaintiff  to  the  defendant  stating  their  amount  and  not 


letters  to  him  are  not  competent 
primary  evidence  of  the  making 
the  purchase.  Id.  Compare,  how- 
ever, Beaver  v.  Taylor,  1  Wall. 
637;  and  see  3  Wall.  149;  Kahl 
v.  Jansen,  4  Taunt.  565;  Fairlie  v. 
Hastings,  10  Ves.  128;  Betham  v. 
Benson,  1  Gow.  45;  Langhorn  v. 
AlInutt,4Taunt.511. 

34  Law  v.  Cross,   1  Black,  533; 
Hoyt    v.    Thompson,    19    N.    Y. 
218. 

35  Wiggins  v.  Burkham,  10  Wall. 
129. 

36  Stocking  v.  Sage,  1  Day,  522, 
SWIFT,  Ch.  J. ;  Powell  v.  Trustees  of 
Xewburgh,  19  Johns.  284,  SPENCER, 
Ch.  J.;  and  see  Douglas  v.  Moody,  9 
Mass.  548.     If  the  liability  arose 
by  reason  of  the  agent's  mistake 
of  law   and    consequent   error  in 
duty  in  a  matter  which  the  em- 
I  lover   properly   trusted    to   him, 
he  can  ot  recover.    Capp  v.  Top- 
ham,  6   East   392.     Otherwise   it 


was  imposed  by  law  on  him,  and 
it  was  by  his  delay  that  the  prin- 
cipal became  directly  liable.  Hales 
v.  Freeman,  4  Moore,  21;  Bate  v. 
Payne,  13  Ad.  &  E.  N.  S.  (Q.  B.) 
900. 

Where,  under  a  general  authority 
the  plaintiff  was  an  agent  of  the 
defendants,  there  can  be  no  ob- 
jection to  the  plaintiff's  introducing 
in  evidence  testimony  as  to 
amounts  actually  expended  by  him 
for  labor  and  materials.  Radel 
v.  Lesher,  137  Fed.  Rep.  719,  70 
Cir.  Ct.  App.  411. 

The  defendant  bank  in  whose 
hands  the  plaintiff  had  placed  cer- 
tain valuable  papers  was  allowed 
to  retain  out  of  the  amount  the 
plaintiff  had  on  deposit  with  it  the 
•sum  which  the  bank  had  expended 
as  attorney's  fees  in  fighting  an 
attachment  levied  on  the  said 
papers.  Bacon  v.  Fourth  Nat. 
Bank,  9  N.  Y.  Supp.  435. 


MONEY  PAID  TO  DEFENDANT  S  USE 


687 


objected  to  by  the  defendant,  is  prima  facie  evidence  of  the 
amount,37  and  throws  on  defendant  the  burden  of  proving 
that  the  advances  were  less  or  the  fund  on  hand  greater.38 

6.  Obligation  to  Pay  what  Defendant  Ought  Rather  to 

have  Paid. 

Neither  a  previous  request  to  pay,  nor  a  subsequent  prom- 
ise to  reimburse,  need  be  proved,  where  plaintiff  shows  that, 
either  by  compulsion  of  law,  or  to  relieve  himself  from  liabil- 
ity, or  to  protect  himself  from  damage,  he  has  been  obliged 
to  pay  what  defendant  himself  ought  to  have  paid.39  The 


37  Mertens    v.    Nottebohms,    4 
Gratt,  (Va.)  163,  168,  173.    So  an 
account  of  sales   made,  and  ren- 
dered to  one  of  the  parties  to  a 
joint  adventure,  by  the  consignee 
and  common  agent  of  both  parties 
to  sell,  is  admissible  in  the  action  of 
the  former  against  the  other  party, 
for  money  paid,  to  prove  the  loss. 
Peltier  v.  Sewall,  12  Wend.  386. 

38  Ledoux    v.    Porche,   12    Rob. 
543. 

39  Bailey  v.  Bussing,   28   Conn. 
455.    The  leading  case  on  the  gen- 
eral principle  is  Exall  v.  Partridge, 
8  T.  R.  314.     There  plaintiff,  at 
defendant's  request,  left  his  coach 
in  defendant's  possession,  and  while 
there  it  was  lawfully  distrained  by 
defendant's  landlord  for  non-pay- 
ment of    rent,  and  plaintiff   paid 
the   rent   to   secure   his   carriage, 
and    recovered    it    of    defendant. 
But  in  England  v.  Marsden,  L.  R. 
1  C.  P.  529,  the  owner  of  furniture, 
for  his  own  advantage  in  letting 
it,  left  it  on  the  defendant's  prem- 
ises, and  it  was  distrained  in  the 
same  manner — Held,  that  his  pay- 
ment of  the  rent  was  not  compul- 


sory within  the  rule.  So,  where  a 
part  owner  of  lands  is  obliged  to 
pay  the  tax  on  the  whole,  to  pro- 
tect his  share,  he  may  recover  from 
the  other  owners  their  just  pro- 
portion, without  showing  any  as- 
sent on  their  part.  Graham  v. 
Dunnigan,  2  Bosw.  516;  but  if  the 
tax  collector  pays  a  man's  tax, 
he  cannot  recover  it  without  some 
evidence  of  the  assent  of  the  latter. 
Overseers  of  Wallkill  v.  Overseers 
of  Mamakating,  14  Johns.  87. 

Where  the  plaintiff  has  been 
compelled  to  pay  what  the  de- 
fendant ought  to  have  paid,  plaintiff 
can  recover  on  an  implied  promise 
to  repay.  Volker  v.  Fisk,  75  N.  J. 
Eq.  497,  72  Atl.  Rep.  1011. 

Where  the  plaintiff  has  paid 
defendant's  debt  in  order  to  pro- 
tect the  plaintiff's  property  he  may 
recover  from  the  defendant.  Weiss 
v.  Guerineau,  109  Ind.  438,  9  N.  E. 
Rep.  399. 

Where  the  plaintiff  could  protect 
himself  from  damage  by  procuring 
an  injunction  or  restraining  order 
instead  of  paying  the  money  he 
cannot  recover.  Manning  v.  Pol- 


688 


MONEY    PAID    TO    DEFENDANT  S    USE 


most  common  instances  of  this  kind  are  where  a  surety  or 
one  entitled  to  indemnity  40    pays  the  obligation  of  the  de- 


ing,  114  la.  20,  83  N.  W.  Rep.  895, 
86  N.  W.  Rep.  30. 

One  who  is  compelled  to  pay  a 
debt,  or  whose  property  is  made 
liable  for  a  debt,  which  another  in 
good  conscience  ought  to  pay,  is 
entitled  to  recover  against  that 
other  the  amount  so  paid.  Finnell 
v.  Finnell,  159  Cal.  535,  114  Pac. 
Rep.  820. 

Where  the  plaintiff  owner  of  real 
estate  pays  money  to  subcontract- 
ors of  the  defendant  who  has 
abandoned  his  contract,  it  is  in- 
cumbent on  the  plaintiff  in  his  ac- 
tion against  the  defendant  to  show 
(1)  the  amount  which  was  due  de- 
fendant on  the  contract,  (2)  the 
amount  and  value  of  the  work 
done  by  the  lienors,  and  (3)  a  valid 
lien  upon  his  premises  for  the  value 
or  agreed  price  of  such  work. 
Stevens  v.  Smith,  112  N.  Y.  Supp. 
361. 

Where  the  plaintiff,  either  by 
compulsion  of  law,  or  to  relieve 
himself  from  liability,  or  to  save 
himself  from  damage,  has  paid 
money  not  officiously,  which  the 
defendant  ought  to  have  paid, 
the  law  implies  a  request  on  the 
defendant's  part,  and  a  promise  to 
repay,  and  the  plaintiff  has  the 
same  right  of  action  as  if  he  had 
paid  the  money  at  the  defendant's 
express  request.  San  Gabriel  Valley 
Land,  etc.,  Co.  v.  Witmer,  96  Cal. 
623,  29  Pac.  Rep.  500,  31  Pac. 
Rep.  588,  18  L.  R.  A.  465,  470; 
Nutter  v.  Sydenstricker,  1 1  W.  Va. 
535;  Atlantic,  etc.,  R.  R.  v.  At- 


lantic, etc.,  Co.,  147  N.  C.  368, 
61  S.  E.  Rep.  185,  125  Am.  St. 
Rep.  550,  23  L.  R.  A.  N.  S.  223, 
15  Ann.  Gas.  363;  Nichols  v.  Buck- 
nam,  117  Mass.  488;  Bailey  v. 
Bishop,  152  N.  C.  383,  67  S.  E. 
Rep.  968. 

If  a  tenant  covenants  in  a  lease 
to  make  certain  payments  the 
landlord  may  recover  where  he, 
instead  of  the  tenant,  has  made 
such  payments.  Pocono  Spring 
Water  Ice  Co.  v.  American  Ice 
Co.,  214  Pa.  640,  64  Atl.  Rep.  398. 

40  If  there  is  a  written  obligation 
to  indemnify,  the  action  will  usu- 
ally be  upon  that,  and  not  an  action 
merely  for  money  paid  to  defend- 
ant's use. 

"We  think  it  clear  that  a  co- 
surety, who  has  been  obliged  to 
satisfy  the  joint  liability  of  the 
several  sureties,  may  recover  at 
common  law  and  under  the  com- 
mon counts  the  amount  due  by 
way  of  contribution  from  a  co- 
surety." Porter  v.  Horton,  80  111. 
App.  333. 

"The  right  of  contribution  does 
not  arise  out  of  any  contract  or 
agreement  between  co-sureties  to 
indemnify  each  other,  but  on  the 
principle  of  equity,  which  courts 
of  law  will  enforce,  that  where  two 
persons  are  subject  to  a  common 
burden,  it  shall  be  borne  equally 
between  them.  In  such  cases  the 
law  raises  an  implied  promise  from 
the  mutual  relation  of  the  parties." 
Warner  v.  Morrison,  3  Allen,  556, 
quoted  with  approval  in  Weeks  v. 


MONEY    PAID    TO    DEFENDANT'S   USE 


689 


fendant  and  sues  for  reimbursement,  or  where  one  of  several 
joint  obligors,  having  paid  the  whole  debt,  sues  his  co- 
obligors  for  contribution.  In  this  class  of  cases,  the  fact 
that  plaintiff  was  legally  required  to  pay  defendant's  debt, 
stands  in  the  place  of  request  or  promise.  But  it  not  enough 
to  prove  that  plaintiff  paid  under  the  mistaken  supposition 
that  he  was  legally  liable.41 


7.  Surety's  Action  against  Principal  or  Co-surety. 

If  the  instrument  in  which  several  persons  are  bound  to 
another  describes  some  of  them  as  sureties  for  others,  or  if 
the  signatures  of  some  state  that  they  are  sureties  for  others, 
this  is  prima  facie  evidence,  as  between  the  obligors,  of  their 


Parsons,  176  Mass.  570,  58  X.  E. 
Rep.  157. 

"When  a  surety  pays  the  debt 
of  his  principal,  an  implied 
promise  arises  on  the  part  of 
the  principal  to  reimburse  the 
surety,  and  that  promise  will 
support  an  action  at  law." 
Bauer  ?.  Gray,  18  Mo.  App. 
164,  170. 

A  surety  who  made  a  payment 
on  his  principal's  account  was  pre- 
sumed to  have  done  so  at  the  lat- 
ter's  request.  Blanchard  v.  Blan- 
chard,  61  Misc.  497,  113  N.  Y. 
Supp.  882. 

"Bancroft  v.  Abbott,  3  Allen 
(Mass.)  524;  Whiting  r.  Aldrich, 
117  Mass.  582.  But  one  who, 
under  the  mistaken  supposition 
that  he  is  a  trustee,  pays  money 
for  the  estate,  may  be  entitled  to 
reimbursement.  Morrison  v.  Bow- 
man, 29  Cal.  337.  And  one  who 
by  mistake  or  ignorantly  pays  de- 
fendant's debt,  may  recover  it, 
if  defendant  had  notice  and  suffered 


it  to  be  done.     Ely  v.  Norton,  2 
Abb.  Ct.  App.  Dec.  19. 

In  Foot  v.  Cotting,  195  Mass.  55, 
60,  80  X.  E.  Rep.  600,  15  L.  R.  A. 
N.  S.  693,  it  was  stated  that  the 
plaintiff  could  maintain  an  action 
to  recover  money  paid  in  taxes  on 
the  defendant's  property  only  when 
the  claim  was  "founded  upon  a 
request  to  the  plaintiff  to  advance 
the  money,  either  actually  made 
or  arising  out  of  the  legal  relations 
of  the  parties,  or  if  voluntarily 
advanced,  then  on  subsequent  rati- 
fication." 

A  principal  contractor  was  held 
to  be  under  no  legal  duty  to  pay 
claims  against  his  subcontractor 
until  liens  for  such  claims  were 
filed  and  actions  commenced 
thereon,  and  in  the  absence  of  a 
request  by  the  subcontractor  or  a 
subsequent  promise  to  pay,  such 
payments  were  merely  volun- 
tary. Trippensee  v.  Braun,  104 
Mo.  App.  628,  78  S.  W.  Rep. 
674. 


690 


MONEY   PAID    TO   DEFENDANT  S   USE 


relation.42  If  the  signature  of  one  does  not  indicate  for 
which  of  several  signing  absolutely  he  is  a  surety,  it  may  be 
presumed,  in  the  absence  of  other  evidence,  either  in  the 
tenor  of  the  instrument  or  in  the  extrinsic  circumstances, 
that  he  was  surety  for  all  previously  signing.43  But  between 
the  parties  who  are  either  principals  or  sureties,  the  question 
of  suretyship  in  a  written  instrument  is  open  to  parol  proof.44 
Such  evidence  does  not  vary  the  instrument,  but  is  collateral 
to  it,  simply  showing  the  relation  of  the  parties.45  Hence, 


"Harris  v.  Warner,  13  Wend. 
400. 

Where  one  pays  money  as  surety 
for  another  it  is  recoverable  in 
an  action  for  money  paid  to  de- 
fendant's use.  Teter  v.  Teter,  65 
W.  Va.  167,  63  S.  E.  Rep.  967. 

43  See  Sisson  v.  Barrett,  6  Barb. 
199,  2  N.  Y.  406. 

Where  a  father  and  son  signed 
a  note  with  others  as  a  joint  obli- 
gation which  one  of  the  signers 
thereafter  paid,  the  son,  in  an 
action  for  contribution,  was  not 
allowed  to  set  up  an  agreement 
that  he  had  merely  signed  as 
surety  for  his  father,  where  such 
agreement  was  unknown  to  the 
other  obligors  on  the  note.  Greene 
v.  Anderson,  19  Ky.  Law,  1187,  43 
S.  W.  Rep.  195. 

In  Sayles  v.  Sims,  73  N.  Y.  551, 
where  three  parties  signed  a  note 
and  the  word  'surety'  was  affixed 
to  the  last  signature,  the  court 
stated  that  the  word  'surety' 
attached  to  defendant's  name 
would  indicate  that  he  was  surety 
for  both  the  other  signers  (and 
not  co-surety  with  one  of  them, 
the  plaintiff,)  but  that  it  was  not 
conclusive.  The  circumstances 
were  held,  however,  to  show  that 


the  defendant  intended  to  become 
surety  for  both.  See  also  Houck 
v.  Graham  et  al.,  106  Ind.  195,  200, 
6  N.  E.  Rep.  594, 55  Am.  Rep.  727, 
where  it  is  stated  that  "the 
rule  is  that'  where  parties  ap- 
pear to  be  sureties  they  will  be 
presumed  to  be  co-sureties." 

44  Sisson  v.  Barrett,  6  Barb.  200, 
2  N.  Y.  406. 

It  is  a  general  rule,  and  one  well 
established,  that  the  relation  the 
parties  occupy  on  the  paper, 
whether  as  principal  or  surety, 
may  be  shown  by  parol,  and  this 
rule  applies  also  as  between  those 
of  the  obligors  who  are  sureties, 
the  liability  of  each  to  be  deter- 
mined by  any  contract  they  may 
have  entered  into  with  each  other. 
Chapeze  v.  Young,  87  Ky.  476, 
9  S.  W.  Rep.  399. 

The  undertaking  of  a  co-maker 
(of  a  note)  may  be  that  of  a  prin- 
cipal or  a  surety,  and  the  obliga- 
tion intended  to  be  assumed  may 
be  shown  by  parol  as  between  the 
signors.  Clement  Nat.  Bank  v. 
Connelly,  88  Vt.  55,  90  Atl.  Rep. 
794. 

45  Blake   v.   Cole,   22   Pick,   97; 
Barry  v.  Ransom,  12  N.  Y.  462; 
Apgar  v.  Hiler,  4  Zabr.  812;  Hub- 


MONEY    PAID    TO   DEFENDANT'S   USE 


(591 


parol  evidence  is  competent  to  show  that  one  who  signed 
without  qualification  was  in  fact  surety,  and  for  whom; 46 
and  that  one  who  signed  with  qualification  was  in  fact  a 
principal;  47  and  that  one  who  signed  as  surety  generally  was 
a  co-surety  with  one  who  signed  without  qualification,48  or 
that  he  signed  under  promise  of  indemnity.49  Such  evidence 
is  admissible  alike  hi  support  of  an  action  by  one  claiming 
to  be  surety,  for  reimbursement;  or  by  one  claiming  to  be 
co-surety,  for  contribution;  and  in  defense  of  one  sued  as 
principal,  for  contribution,  and  claiming  to  be  surety;  or 
sued  as  co-surety,  and  claiming  to  be  indemnified.50  The 
promise  to  indemnify  may  be  proved  by  parol,  for  it  is  not  a 
promise  to  answer  for  the  debt,  etc.,  of  a  third  person, 


bard  v.  Gurney,  64  N.  Y.  457;  and 
see  11  Moak's  Eng.  R.  41,  n.; 
Monson  v.  Blakely,  40  Conn.  552, 
s.  c.,  16  Am.  Rep.  94.  The  reason 
of  the  rule  forbidding  parol  evidence 
to  vary  a  writing, — viz.,  that  the 
parties  may  be  presumed  to  have 
embodied  all  the  terms  of  their 
contract  in  the  writing, — cannot 
justly  apply  to  the  arrangements 
between  several  parties  upon  one 
tiide  as  to  how  they  will  bear  the 
resulting  liability,  as  among  them- 
selves, unless  the  contract  manifest 
an  intention  to  define  their  relation 
toward  each  other. 

The  apparent  rights  of  the  in- 
dorser  on  the  face  of  a  note  as  well 
as  the  contract  of  indorsement  can 
be  qualified  and  changed  by  parol 
evidence.  Witherow  v.  Slayback, 
158  X.  Y.  649,  53  N.  E.  Rep.  681, 
70  Am.  St.  Rep.  507. 

^Robison  v.  Lyle,  10  Barb. 
512,  HARRIS,  J.;  Mohawk  &  Hud- 
son R.  R.  Co.  v.  Costigan,  2  Sandf. 
Ch.  306. 

Though    the   defendant's    agent 


appeared  as  principal  on  a  bond 
which  the  plaintiff  paid,  parol  evi- 
dence was  held  admissible  to  show 
that  the  defendant  was  an  undis- 
closed principal.  City  Trust,  etc., 
Co.  v.  American  Brewing  Co.,  70 
App.  Div.  511,  75  N.  Y.  Supp. 
140. 

An  indorser  of  a  promissory 
note  is  not  to  be  presumed  to  be 
the  co-surety  of  one  who  signs  as 
maker,  but  parol  evidence  is  ad- 
missible to  prove  that  he  did  sign 
as  co-surety.  Knopf  v.  Morel. 
Ill  Ind.  570,  13  N.  E.  Rep. 
51. 

47  Robison     v.     Lyle      (above) ; 
see  also  Sisson  v.  Barrett,  6  Barb. 
199. 

48  Sisson  v.  Barrett  (above). 
And    similarly    parol    evidence 

was  held  competent  to  show  that 
successive  indorsers  of  a  note  were 
co-sureties.  Weeks  v.  Parsons,  176 
Mass.  570,  58  N.  E.  Rep.  157. 

"Barry  v.  Ransom,  12  N.  Y. 
462. 

63  Same  cases. 


692 


MONEY    PAID    TO    DEFENDANT  S   USE 


within  the  meaning  of  statute  of  frauds.51  For  this  purpose 
evidence  of  declarations  made  either  at  the  time  of  negotiat- 
ing the  loan,  or  at  the  tune  of  signing  the  obligation  are 
equally  competent  as  part  of  the  res  gestfB*-  It  is  not  enough 
for  a  surety  to  show  that  he  became  surety  voluntarily 
without  the  request  or  assent  of  the  alleged  principal.53 
Evidence  of  defendant's  admission  that  plaintiff  was  his 
surety  is  competent;  but  to  charge  several  defendants  (not 
partners),  such  admission  or  declaration  of  one  made  in  the 
absence  of  the  others  is  not  competent  against  the  others, 


51  Barry  v.  Ransom,  12  N.  Y. 
462;  Horn  v.  Bray,  51  Ind.  555, 
s.  c.,  19  Am.  Rep.  742,  and  cases 
cited.  Contra,  Bissig  v.  Britton, 
59  Mo.  2O4,  s.  c.,  21  Am.  Rep.  379. 
So,  an  agreement  between  two 
separate  indorsers  that  if  one  will 
pay  in  goods  the  other  will  reim- 
burse him,  may  be  proved  by 
parol.  Sanders  v.  Gillespie,  59 
N.  Y.  250,  affi'g  64  Barb.  628. 

Where  the  promisee,  under  the 
promisor's  agreement  to  indemnify 
and  save  him  harmless,  becomes 
jointly  liable  as  co-surety  with  him 
for  the  same  obligor,  such  agree- 
ment is  held  to  be  an  original  un- 
dertaking, and  not  within  the 
statute.  Rose  r.  Wollenberg,  31 
Or.  269,  44  Pac.  Rep.  382,  39  L.  R. 
A.  378,  65  Am.  St.  Rep.  826.  See 
also  Peterson  v.  Creason,  47  Or. 
69,  81  Pac.  Rep.  574.  The  same 
rule  obtained  where  the  promisee 
became  a  guarantor.  Jones  v. 
Bacon,  145  N.  Y.  446,  40  N.  E. 
Rep.  216;  O'Brien  v.  Donnelly, 
169  App.  Div.  709,  155  N.  Y. 
Supp.  790. 

An  oral  promise  made  by  one 
party  to  indemnify  another  for 


becoming  a  co-surety  on  a  third 
person's  obligation  was  held  to  be 
an  original  and  enforceable  under- 
taking, not  within  the  statute. 
Hartley  v.  Sanford,  66  N.  J.  Law, 
40,  48  Atl.  Rep.  1009.  See  also 
Clark  v.  Toney,  17  Ga.  App.  803, 
88  S.  E.  Rep.  690. 

52  Robinson  v.  Lyle,  10  Barb. 
512,  HARRIS,  J.,  1851;  s.  p.,  12 
X.  Y.  462,  DENIO,  J. 

53Gager  v.  Babcock,  48  N.  Y. 
154;  McPherson  v.  Meek,  30  Mo. 
345;  Carter  v.  Black,  4  Dev.  &  B. 
L.  425.  But  tacit  assent  is  enough. 
Alexander  v.  Vane,  1  M.  &  W.  511. 
The  requirement  of  the  law  that  a 
creditor  should  give  security  for 
the  support  of  a  debtor  imprisoned 
on  his  execution,  if  the  debtor  make 
oath  of  his  own  inability,  has  been 
held  sufficient  to  enable  a  creditor, 
paying  pursuant  to  security  so 
given,  to  recover  of  the  debtor. 
Plummer  v.  Sherman,  29  Me.  555. 

A  voluntary  guaranty  of  a  note 
payable  to  a  third  party  gave  the 
guarantor  no  right  to  recover  the 
amount  which  he  had  been  obliged 
to  pay.  Ricketson  -v.  Giles,  91 
111.  154. 


MONEY    PAID    TO    DEFENDANT'S    USE 


693 


unless  there  is  something  to  show  that  the  declarant  had  au- 
thority to  speak  for  them.54 

When  the  relation  of  suretyship  or  of  co-suretyship  is 
shown  the  law  implies  the  promise  to  reimburse  55  or  to  con- 
tribute.56 A  co-surety  may  recover  full  indemnity,  but  not 
without  proof  of  an  agreement,57  or  a  request  and  benefit 
raising  an  equity  which,  under  the  circumstances,  is  equiva- 
lent.58 Mere  evidence  that  plaintiff  became  co-surety  at 
defendant's  request  is  not  enough.59 


54  Warner  v.  Price,  3  Wend.  397, 
and  see  chapter  VIT,  paragraph  5, 
of  this  vol. 

58  Holmes  v.  Weed,  19  Barb.  128; 
Vartie  v.  Underwood,  18  Id.  561. 
If  there  are  several  principals,  the 
liability  of  either  to  the  surety  is 
not  qualified  by  evidence  that,  as 
between  the  principals,  the  one 
was  not  liable  for  the  whole  debt. 
Westcott  v.  King,  14  Barb.  32. 

There  is  an  implied  obligation 
on  the  principal  to  reimburse  the 
surety  who  has  paid  the  principal's 
debt.  Mosely  v.  Fullerton,  59 
Mo.  App.  143,  150. 

A  surety  company  which  had 
paid  a  sum  of  money  on  an  em- 
ployee's indemnity  bond  for  the 
latter's  misconduct  brought  an  ac- 
tion against  the  employee's  ad- 
ministrators to  recover  the  amount 
paid.  It  was  held  that  the  law 
implied  a  promise  on  the  part  of 
the  employee  to  save  the  company 
harmless.  U.  S.  Fidelity  &  Guar- 
anty Co.  v.  Gray's  Admrs.,  97  Atl. 
Rep.  (Del.)  425. 

56  Norton  v.  Coons,  3  Den.  130, 
and  cases  cited. 

One  of  the  three  joint  and  sev- 
eral guarantors  of  payment,  who 
has  paid  the  full  amount  due  under 


the  guaranty  has  a  right  to  recover 
contribution  of  one-third  of  the 
amount  paid  against  the  estate  of 
one  of  his  co-guarantors,  and  no 
short  statute  of  limitations  avail- 
able to  the  obligee  can  be  availed 
of  to  destroy  such  right  of  contri- 
bution. Hard  v.  Mingle,  141  N. 
Y.  App.  Div.  170,  126  N.  Y. 
Supp.  51. 

The  law  implies  an  obligation 
on  the  part  of  co-sureties  to  pay 
their  proportionate  amount  of  the 
entire  liability  which  one  surety 
has  paid.  Mosely  v.  Fullerton,  59 
Mo.  App.  143,  150. 

*  McKee  v.  Campbell,  27  Mich. 
497. 

A  surety  alleging  a  promise  by 
a  co-surety  to  indemnify  him  for 
anything  paid  in  excess  of  one- 
third  of  the  principal  obligation 
was  held  to  have  the  burden  of 
proving  either  an  express  agree- 
ment to  that  effect  or  one  implied 
from  the  conduct  of  the  parties. 
Rose  v.  Wollenberg,  36  Or.  154, 
59  Pac.  Rep.  190. 

68  See  Daniel  v.  Ballard,  2  Dana 
(Ky.)  296. 

59  McKee  v.  Campbell  (above). 
Contra,  see  Byers  v.  McClanahan, 
6  Gill.  &  T.  499. 


694 

It  is  enough  for  the  surety  to  prove  that  his  payment  was 
under  a  fixed  legal  liability;  he  need  not  prove  legal  compul- 
sion to  pay,  as  by  suit  brought; 60  nor  need  he  show,  to  charge 
a  co-surety  for  contribution,  that  the  principal  is  unable  to 
pay.61  The  implied  promise  may  be  rebutted  by  circum- 
stances.62 The  mere  fact  that  the  defendant  became  surety 
at  the  request  of  plaintiff  is  not,  however,  sufficient  to  rebut 
the  presumption  of  a  promise  to  contribute;63  nor  is  the 
fact  that  he  did  not  sign  till  a  long  time  after  the  other  par- 
ties were  bound; 64  but  evidence  that  the  plaintiff,  upon 
requesting  the  defendant  to  join,  expressly  promised  to  in- 
demnify him,65  or  that  he  should  be  put  to  no  loss,66  or  evi- 
dence that  plaintiff  received  a  personal  benefit  from  the  exe- 
cution of  the  obligation,  as  where  the  money  raised  went  into 
his  hands,67  is  sufficient  to  exonerate  the  defendant  from 
liability  to  contribute. 

8.  Implied  Promise  to  Indemnify. 

If  plaintiff  incurred  the  liability  by  innocently  complying 
with  the  request  or  direction  of  the  defendant,  (whether  he 

60  Mauri  ».  Heffernan,  13  Johns.      143.  .See  also  Boutin  v.  Etsell,  110 
58;  compare  Stone  v.  Hooker,  9      Wis.  276,  85  N.  W.  Rep.  964. 
Cow.  154.  62  Bagott  v.  Mullen,  32  Ind.  332, 

"We  think  it  clear  that  a  surety,  s.  c.,  2  Am.  Rep.  351. 

who  is  in  law  bound  to  pay  an  ob-  63  Id.     (disapproving    Chit,    on 

ligation,  has  an  undoubted  right  Cont.  669.  and  see  chapter  XIII, 

to  pay  the  same,  and  to  proceed  paragraph  7,  and  notes  thereto,  of 

against  his  principals  or  co-sureties  this  vol.). 

for  indemnity  or  repayment,"  with-  64  In    this    case,    eight   months, 

out  having  a  suit  instituted  against  McNeil  v.  Sandford,  3  B.  Monr. 

himself  or  his  principal,  and  judg-  (Ky.)  11. 

ment  rendered.     May  v.  Ball  108  «s  Thomas  v.  Cook,  8  B.  &  C.  728; 

Ky.  180,  56  S.  W.  Rep.  7.  Cutter  t>.  Emery,  37  N.  H.  567. 

61  Goodall  v.  Wentworth,  20  Me.  See  Garner  v.   Hudgins,   46   Mo. 
322.    Contra,  Atkinson  ».  Stewart,  399,  s.  c.,  2  Am.  Rep.  520. 

2  B.  Monr.  348.  «  Apgar  v.  Hiler,  4  Zabr.  812. 

The  insolvency  of  the  principal  67  Daniel    v.    Ballard,    2    Dana 

need    not   be   alleged   or   proved.  (Ky.),  296,  s.  p.,  21  Pick.  196,  32 

Mosely  v.  Fullerton,  59  Mo.  App.  Ind.  332,  s.  c.,  2  Am.  Rep.  355. 


MONEY    PAID    TO    DEFENDANT'S    USE 


695 


was  the  agent 68  of  defendant,  or  not),69  in  an  act  which  would 
have  been  lawful  if  plaintiff  had  the  right  or  authority  which 
he  claimed  or  assumed,  the  law  implies  a  promise  on  de- 
fendant's part  to  indemnify  plaintiff.  No  such  promise  is 
implied  when  plaintiff  knew  the  act  was  illegal.70  Where  the 
wrong  done  consisted  hi  negligence  merely,  plaintiff,  who 
has  been  obliged  to  pay,  may  recover,  on  proof  that,  as  be- 
tween him  and  defendant,  the  latter  was  the  one  actually 
negligent,  and  the  former  only  constructively  liable  there- 
for.71 In  either  class  of  cases,  the  judgment  against  plaintiff 


68  Howe  v.  Buffalo,  &c.,  R.  R. 
Co.,  37  N.  Y.  297,  affi'g  38  Barb. 
124. 

See  Culmer  v.  Wilson,  13  Utah, 
129,  44  Pac.  Rep.  832, 57  Am.  Rep. 
713,  where  a  trustee,  innocent  of 
any  knowledge  of  the  illegality  of 
his  act,  and  at  the  request  of  his 
cestui  que  trust  obtained  a  judg- 
ment in  a  court  which  was  subse- 
quently found  to  have  no  jurisdic- 
tion over  the  matter. 

69  Dugdale  v.  Lovering,  L.  R.  10 
C.  P.  196,  s.  c.,  12  Moak's  Eng.  R. 
316. 

70  Peck  v.  Ellis,  2  Johns.  Ch.  131; 
Miller  v.  Fenton,  11  Paige,  18. 

Among  wrongdoers,  equity  will 
not  compel  contribution  or  en- 
force subrogation.  Gilbert  v. 
Finch,  173  N.  Y.  455,  66  N.  E. 
Rep.  133,  93  Am.  St.  Rep.  623,  61 
L.  R.  A.  807. 

When  one  party  paid  for  the 
wrongful  acts  of  another  for  which 
he  was  not  equally  culpable  or  in 
pan  delicto,  it  was  held  that  he 
could  recover  indemnity  of  the 
person  actually  guilty  of  the  wrong, 
though  as  to  third  parties  either 
were  liable.  Balto.,  etc.,  R.  R. 


Co.  v.  Howard  Co.,  113  Md.  404, 
77  Atl.  Rep.  930.  See  also  cases 
in  notes  40  L.  N.  S.  1147. 

71  Gray  v.  Boston  Gas-Light  Co., 
114  Mass.  149,  s.  c.,  19  Am.  Rep. 
324.  See  also  Hart  Twp.  v.  Noret, 
191  Mich.  427,  158  N.  W.  Rep. 
17,  L.  R.  A.  1910,  F.  83;  Spiess  t>. 
Linde,  160  N.  Y.  Supp.  1105. 

The  plaintiff  had  the  burden  of 
proving  that  a  judgment  was  re- 
covered against  it,  not  only  be- 
cause of  the  defendant's  negligence, 
but  through  no  personal  negligence 
of  its  own.  Oceanic  Steam  Nav- 
igation Co.  v,  Campania  Trans- 
atlantica  Espanola,  144  N.  Y.  663, 
39  N.  E.  Rep.  360. 

Where  one  of  two  or  more  per- 
sons chargeable  with  negligence 
was  primarily  liable  therefor  and 
the  others  were  only  liable  by  rea- 
son of  their  ownership  of  the  prop- 
erty and  not  by  reason  of  any  neg- 
ligence occurring  by  their  active 
interposition  or  with  their  affirm- 
ative knowledge  and  assent,  the 
latter  are  entitled  to  indemnity. 
Scott  v.  Curtis,  195  N.  Y.  424,  88 
X.  E.  Rep.  794,  133  Am.  St.  Rep. 
811,  40  L.  R.  A.  N.  S.  1147. 


696 


MONEY    PAID    TO    DEFENDANTS    USE 


and  defendant,  holding  them  jointly  liable  to  the  third  per- 
son, and  which  judgment  plaintiff  has  paid,  may  be  explained 
by  parol  evidence  to  show  the  relation  of  the  parties  to  the 
tort.72  If  the  verdict  or  judgment  which  plaintiff  has  paid 
was  in  an  action  against  both,  or  against  one  and  defended 
at  his  request  by  the  other,  or  defended  by  plaintiff,  after 
notice  and  request  to  defendant  to  assume  its  defense,  it  is 
evidence  against  defendant  of  the  amount  of  damages.73 

9.  Action  between  Parties  to  Negotiable  Paper. 

An  action  on  the  bill  or  note  is  founded  directly  on  the 
instrument,  and  a  release  or  other  discharge,  though  given 
before  maturity,  may  bar  the  action.74  But  an  action  for 
money  paid  on  it,  is  on  a  cause  of  action  which  did  not  arise 
until  the  payment,  and  which  consists  in  the  right  of  one 
paying  money  for  the  benefit  of  another,  pursuant  to  his 
request  or  direction,  to  have  it  refunded; 75  and  although  the 


72  Bailey  v.   Bussing,   28   Conn. 
455;  Armstrong  County  v.  Clarion 
County,  66  Penn.  St.  218,  s.  c., 
5  Am!  Rep.  368.     See  McArthor  v. 
Ogletree,  4  Ga.  App.  429,  433,  61 
S.  E.  Rep.  859. 

73  See  Inhabitants  of  Westfield  v. 
Mayo,  122  Mass.  100,  s.  c.,  23  Am. 
Rep.     292;    Grand     Trunk    Ry. 
Co.    v.    Latham,    63    Me.     177. 
See    also  Washington  Gas   Light 
Co.  v.  District  of  Columbia,  161 
U.  S.  316,  16  S.  Ct.  564,  40  L.  ed. 
712;  Bloomington  v.  Chicago,  etc., 
R.  Co.,  52  Ind.  A.  510,  98  N.  E. 
Rep.  188;  Hill  Steamboat  Line  v. 
N.  Y.  C.,  etc.,  R.  Co.,  94  Misc. 
118,  158  N.  Y.  Supp.  1084. 

Where  the  defendant  had  notice 
of  the  action  in  which  a  judgment 
was  recovered  against  the  plaintiff 
for  an  act  for  which  the  defendant 
was  primarily  liable,  and  was  pres- 


ent at  the  trial  thereof,  it  was  held 
that,  under  the  evidence,  a  peremp- 
tory instruction  to  find  for  the 
plaintiff  the  amount  it  had  paid 
upon  the  judgment  should  have 
been  given.  Harrodsburg  v.  Van- 
arsdall,  148  Ky.  507,  147  S.  W. 
Rep.  1. 

74  Cuyler  v.  Cuyler,  2  Johns.  186. 

75  Wright    v.    Garlinghouse,    26 
N.   Y.   539.     See   Tn   re  Barnes' 
Estate,    158   N.  W.   Rep.    (Iowa) 
754. 

The  cause  of  action  by  an  in- 
dorser  of  a  promissory  note  against 
the  maker  does  not  arise  until  he 
has  in  fact  made  payment  on  the 
note  by  reason  of  his  liability  as  in- 
dorser.  The  statute  of  limitations 
begins  to  run  from  the  time  of  such 
payment  and  not  from  the  time 
the  note  became  due.  Blanchard 
v.  Blanchard,  61  N.  Y.  Misc.  497, 


MONEY    PAID    TO    DEFENDANT'S   USE 


697 


negotiable  paper,  pursuant  to  the  terms  of  which  the  pay- 
ment was  made,  may  be  part  of  the  necessary  evidence,76  the 
contract  sued  on  does  not  inhere  in  the  paper,  but  exists 
outside  of  it;  and  variance  in  the  description  of  the  paper  is 
but  of  trifling  importance.77  Presumptively  the  right  to 
claim  reimbursement  arises  in  the  inverse  order  in  which 
the  names  of  the  parties  appear  on  the  paper.78  The  prom- 
ise to  reimburse  may  be  proved  by  parol,  though  contra- 
dictory to  the  apparent  relation  arising  from  the  paper;  as 
where  an  accommodation  maker  sues  the  payee,79  or  an  ac- 
commodation acceptor  sues  the  drawer.80  So  a  parol  agree- 
ment made  between  indorsers  at  the  time  of  indorsing,  that 
they  will  share  any  liability  thereon,  may  be  proved,  to  sup- 
port an  action  by  one  against  the  other  for  contribution. 
Proof  that  an  acceptance  was  made  without  funds  rebuts 
this  presumption  arising  from  the  order  of  names  on  the 
paper,  and  raises  the  presumption  of  such  a  promise  by  the 


113  X.  Y.  Supp.  882;  Norton  v. 
Hall,  41  Vt.  471. 

76  Id. 

77  Cameron  v.  Warbritton,  9  Ind. 
361. 

78  Watson    v.    Shuttleworth,    53 
Barb.  357;  Sweet  v.  McAllister,  4 
Allen,  353. 

79  Seymour  v.  Minturn,  17  Johns. 
175. 

An  accommodation  indorser  who 
paid  the  note  may  maintain  an  ac- 
tion for  money  paid  for  the  maker 
thereof.  Blanchard  v.  Blanchard, 
61  Misc.  497,  113  N.  Y.  Supp. 
882. 

80  Wright  v.  Garlinghous  (above) ; 
Ross  v.  Espy,  66  Penn.  St.  481, 
s.  c.,  5  Am.  Rep.  394;  Phillips  v. 
Preston,  5  How.  (U.  S.)  278.    But 
such  a  parol  agreement  between 
maker  and  indorser  is  not  compe- 
tent  for  the  purpose  of  showing 


that  the  indorser  is  not  entitled 
to  recover  against  the  maker,  if 
the  indorser  was  under  no  legal 
obligation  for  the  consideration, 
and  refused  to  contract  except  in 
that  form.  Crater  v.  Binninger, 
45  N.  Y.  545,  affi'g  54  Barb.  155. 
To  charge  one  who  signed  as  surety 
for  the  drawer,  there  must  be 
some  evidence  that  he  was  a  party 
to  the  request  to  accept  for  ac- 
commodation. Wright  v.  Garling- 
house,  26  X.  Y.  539,  rev'g  27 
Barb.  474. 

Where  the  defendant  gives  a 
check  to  a  third  person  and  states 
on  the  face  of  the  check  that  it  is 
in  payment  of  the  plaintiff's  note, 
the  defendant  cannot  charge  the 
plaintiff  with  the  amount  of  the 
check.  Sheldon  Canal  Co.  v. 
Miller,  40  Tex.  Civ.  App.  460,  90 
S.  W.  Rep.  206. 


()98  MONEY   PAID   TO    DEFENDANT^   USE 

drawer  to  reimburse.  This  latter  presumption  again  is  re- 
butted by  evidence  that  the  acceptance  was  by  express 
agreement  for  accommodation  of  the  payees,  or  other  parties 
who  were  to  be  looked  to  for  payment.  It  is  only  in  the  ab- 
sence of  an  express  agreement  that  the  law  implies  a  prom- 
ise on  the  part  of  the  drawer.81  In  the  action  for  money  paid, 
evidence  of  demand  and  notice  of  nonpayment  is  necessary 
to  charge  the  defendant  if  it  would  have  been  necessary 
in  an  action  against  him  by  the  same  plaintiff  directly  upon 
the  bill  or  note  itself; 82  otherwise  not.  But  a  judgment  re- 
covered by  a  former  holder  against  the  defendant  is  com- 
petent evidence  from  which  to  infer  that  he  had  notice.83 

10.  Proof  of  Payment. 

To  sustain  this  action  (as  distinguished  from  an  action  on 
a  contract  to  indemnify  from  liablity,  etc.),  actual  payment 
must  be  shown.84  Proof  of  the  mere  incurring  of  liability 
is  not  sufficient, 85  even  as  to  incidental  items,  86  nor  is  it 
made  sufficient  by  the  fact  that  the  creditor  accepted 

81  Thunnan   v.   Van   Brunt,    19  One  cannot  maintain  an  action 

Barb.  410,  HARRIS,  J.  for  contribution  by  a  joint  obligor 

8J  Wilbur  v.  Selden,  6  Cow.  162.  until   the   original   obligation   has 

83  Hamilton  v.  Veach,  19  Iowa,  been  paid.    Weidemeyer  v.  Landon, 
419.    Even  though  plaintiff  was  not  66  Mo.  App.  520. 

a  party  to  the  action  in  which  the  Where  the  plaintiff  alleged  that 

judgment    was    had.      Keeler    v.  he  had  been  compelled  to  pay  his 

Bartine,  12  Wend.  110.    Compare  own  note  which  the  defendant  had 

Beck  v.  Hunter,  3  La.  Ann.  641.  assumed,  it  was  held  that  the  plain- 

84  But   under   an   agreement   to  tiff  must  show  actual  payment  by 
pay  personal  expenses  on  a  jour-  himself,  since  his  action  was  on  the 
ney,  such  expenses  as  he  avoided  theory  of  money  paid  for  defend- 
by  means  of  facilities  personal  to  ant's   use   rather   than   upon   de- 
himself,  may  be  proved.    Moore  v.  fendant's  promise  to  pay  the  note. 
Remington,  34  Barb.  427.  Tibbett  ».  Zurbuch,  22  Ind.  App. 

Where  the  complaint  alleges  a  354,  52  N.  E.  Rep.  815. 

promise  to  repay,  it  is  incumbent  85Ainslie    v.    Wilson,    7    Cow. 

on  the  plaintiff  to  produce  evidence  662. 

to  support  it.    Wright  v.  Anderson,  *«  Whiting  v.  Aldrich,  117  Mass. 

117  N.  Y.  Supp.  209.  582. 


MONEY    PAID    TO    DEFENDANT'S   USE 


699 


the  plaintiff's  obligation  in  discharge  of  the  defendant's 
liability,87  unless  the  new  obligation  was  negotiable 
paper.88 

11.  — by  Oral  Evidence. 

A  witness  of  the  fact  of  payment  may  testify  to  it,  and,  if 
an  actor  in  the  transaction,  to  the  purpose  and  object  of  it, 
under  the  same  restrictions  as  hi  the  case  of  a  loan.89  But  he 
must  speak  from  his  knowledge  of  the  transaction,  not  from 
that  subsequently  derived  from  receipts  or  other  mem- 
oranda.90 But  memoranda  of  payment,  made  by  the  witness 
at  or  presently  after  the  tune,  may  be  used  by  him  hi  testi- 
fying, and  thereupon  put  hi  evidence.91  If  it  be  proved  that 
a  receipt  was  given,  it  need  not  (unless  the  receipt  of  a  public 
officer)  be  produced  or  accounted  for  in  order  to  let  in  oral 
evidence  of  the  fact  of  payment,92  unless  its  terms  become 
material.  Evidence  of  the  oral  admissions  or  declarations 


87  The  giving  of  a  bond,  though 
accepted    in    satisfaction,    is    not 
enough    (Maxwell   v.   Jameson,   2 
B.  &  Aid.  51,  and  cases  cited;  Gum- 
ming v.   Hackley,   8  Johns.   202; 
Ainslie  v.   Wilson,   7   Cow.   662); 
nor  is  a  bond  and  warrant  of  at- 
torney (Taylor  -v.  Higgins,  3  East, 
169);  nor  indorsing  a  bill  given  to 
make   a   compromise  and  release 
defendant's  property   (Douglas  v. 
Moody,  9  Mass.  548) ;  nor  even  the 
fact  that  plaintiff  has  been  charged 
in  execution   (Powell  x.  Smith,  8 
Johns.  249.) 

88  See  paragraph  16  (below). 

A  surety  who  discharged  the 
sureties 'obligation  on  a  note  by  giv- 
ing his  own  note,  negotiable  by  the 
law  merchant,  was  held  to  have 
made  such  payment  as  would  en- 
title him  to  indemnity.  Nixon  v. 
Beard,  111  Ind.  137,  12  N.  E. 


Rep.  131.  Likewise,  where,  as 
contribution,  he  gave  his  note 
to  his  co-surety  it  was  held  he 
could  maintain  a  suit  for  in- 
demnity against  his  principal. 
Stone  v.  Hammell,  3  Cal.  Unrep. 
Cas.  128,  22  Pac.  Rep.  203.  And 
in  Flannagan  v.  Forrest,  94  Ga. 
685,  21  S.  E.  Rep.  712,  a  surety 
who  had  received  a  mortgage  as 
indemnity  was  allowed  the  right 
of  foreclosure  where  his  note  had 
been  accepted  as  payment  of  the 
obligation  on  which  he  was  surety. 

89  See  chapter  XII,  paragraph  3, 
of  this  vol. 

90  Keith   v.   Mafit,   38   111.   303; 
and  see  Scarborough  v.  Reynolds, 
12  Ala.   252,  263. 

91  See  paragraph  15  (below). 

92  Berry  v.  Berry,   17  N.  J.  L. 
440;  Jackson  v.  Stackhouse,  1  Cow. 
122. 


700  MONEY    PAID    TO    DEFENDANT'S   USE 

of  the  payee  is  not  competent  against  the  defendant,93  unless 
there  is  something  to  connect  the  defendant  with  him,  or 
with  the  declaration  offered,  or  unless  the  declaration  was 
part  of  the  res  gestce  of  an  act  properly  in  evidence.94 

12.  — by  Producing  Defendant's  Order  in  Favor  of  Third 
Person. 

The  production  from  plaintiff's  possession  of  an  order  or 
draft  for  the  money,  shown  to  have  been  executed  by  de- 
fendant,95 and  payable  to  a  third  person  specified  therein,96 
and  which  is  shown,  or  may  be  presumed  to  have  been  pre- 
viously in  the  possession  of  the  payee  (and  this  is  presumed 
in  the  case  of  a  draft  or  order  hi  the  common  form,  but  not 
in  the  case  of  a  letter  or  note  addressed  to  the  plaintiff), 
is  prima  facie  evidence  of  payment  according  to  its  tenor  by 
the  plaintiff,97  although  it  be  not  indorsed  nor  accompanied 
by  a  receipt.98  The  presumption  may,  however,  be  rebutted 
by  evidence  of  facts  tending  to  explain  the  possession  as  ac- 
quired without  payment, — as,  for  instance,  proof  of  a  usage 
to  leave  drafts  with  the  payee,  for  acceptance,  in  which  case 
the  question  whether  the  plaintiff's  possession  is  evidence  of 
payment  is  one  for  the  jury.99  The  order  is  not,  however,  evi- 
dence of  payment  of  plaintiff's  money  to  defendant's  use, 

93  See  Gandolfo  v.  Appleton,  40      where  the  same  rule  was  applied  to 
N.  Y.  533.  a  draft  with  the  payee's  name  in 

94  See  last  note  to  paragraph  15,      blank. 

chapter  XII.  "Blount  v.  Starkey,  1  Tayl.  X. 

95  Lane  v.  Farmer,  13  Ark.  63.  C.  110,  s.  c.,  2  Hayw.  75;  Succes- 
Where  one  paid  his  son  in  law's      sion  of  Penny,  14  La.  Ann.  194,  2 

notes  at  the  latter's  request  and  as  Greenl.  Ev.  475,  §  519. 

cashier  indorsed  them  to  himself,  ^Zeigler  v.  Gray  (above).    If  a 

the  notes  were  held  to  be  some  evi-  receipt  be  indorsed,  its  execution 

dence  of  the  payment  of  the  money  should  be  proved,  but  if  the  omis- 

for  the  son  in  law.    In  re  Barnes'  sion  to  prove  it  is  not  objected  to, 

Estate,    158  N.   W.   Rep.    (Iowa)  the  effect  of  the  possession  of  the 

754.  order  as  evidence  of  payment  is 

96  Zeigler  v.  Gray,  12  Serg.  &  R.  not  impaired.    Weidner  v.  Schwei- 
42.     Compare  Close  v.  Fields,  9  gert,  9  Serg.  &  R.  385. 

Tex.  442,  13   Id.  623,  2  Id.  232;          "Close    v.    Fields    (above). 


MONEY    PAID    TO    DEFENDANT'S   USE  701 

but  is  presumptively  evidence  of  payment  from  funds  of 
defendant  inferred  to  be  in  plaintiff's  hands.  There  must  be 
some  evidence  to  rebut  this  presumption.1 

13.  — by  Plaintiff's  Check  or  Accounts. 

The  same  rules  apply  in  proving  payment  by  check,  as  hi 
an  action  for  money  lent.2  Evidence  of  defendant's  ad- 
mission, even  by  silence,  when  he  was  told  by  plaintiff  that 
he  had  sent  a  check,  is  competent  to  go  to  the  jury,  although 
the  payment  be  one  not  presumably  within  the  personal 
knowledge  of  defendant,  especially  after  great  lapse  of 
time.3 

14.  — by  the  Payee's  Receipt  or  Surrender  of  Evidence  of 

Debt. 

Where  there  is  no  evidence  connecting  the  plaintiff's 
request  or  obligation  with  the  particular  person  to  whom  the 
payment  was  made, — as,  for  instance,  in  the  case  of  an 
agent's  purchases  hi  the  market,  or  payments  for  necessa- 
ries,— the  receipt  or  other  admission  of  the  payee  is  not  alone 
competent  evidence  of  the  payment,  as  against  defendant; 4 

1  Alvord  v.  Baker,  9  Wend.  323.  11-18,   of   this   vol.     Proof   of   a 
Where  it  is   the   usual   course  of  check  drawn  by  plaintiff  in  favor 
business    for    a    factor    to    accept  of  A.,  and  paid  to  A.,  is  evidence 
bills  drawn  by  his  principal  and  of   payment,   without   proof   that 
return  them  to  him,  to  be  used  for  plaintiff  delivered  the  check  to  A. 
raising  money  as  he  pleases,  the  Mount-ford   v.   Harper,    16   M.   & 
factor's    possession    of    such    bills  W.  825. 

bearing  the  blank  indorsement  of  3  Price  v.  Burva,  6  Weekly  R. 

the   principal,   is   sufficient  prima  40.  / 

facie    evidence    of    ownership    to  *  Cutbush  v.  Gilbert,  4  Serg.  & 

enable  the  factor  to  recover  from  R.  555;  Roll  v.  Maxwell,  5  N.  J.  L. 

the    principal     the    money    paid  (2  South.)  493.     -Compare  Steph. 

thereon  at  maturity,  in  the  absence  Dig.  Ev.  37. 

of  proof  of  an  unlawful  diversion.  A  receipt  for  money  paid  in  be- 

Rice  v.  Isham,  4  Abb.  Ct.  App.  Dec.  half  of  the  defendant  is  no  evidence 

37.  against  him.    Storrs  v.  Scougale,  48 

2  See  Chapter  XII,  paragraphs  Mich.  387,  12  N.  W.  Rep.  502. 


702 


MONEY    PAID    TO   DEFENDANT  S   USE 


for  the  payee  or  other  witness  should  be  produced; 5  but 
it  is  admissible  hi  connection  with  other  competent  evidence 
of  the  fact  of  payment, — such  as  evidence  that  plaintiffs 
check  was  sent  to,  and  received  by,  the  payee, — and  that 
the  receipt  was  given  in  consequence,6  and  as  part  of  the 
transaction.7  If  the  payee  is  not  living,  however,  his  receipt 
is  competent,  as  a  declaration  against  interest.8  On  the 
other  hand,  when  the  person  to  whom  the  payment  is  made 
is  designated  by  the  contract  of  the  defendant, — as  in  case 
of  an  order  hi  favor  of  such  person,9  — or  is  pointed  out  by 
law, — as  in  case  of  a  payment  of  taxes  I0  or  for  public  lands,11 
—then  the  receipt  of  such  person,  its  execution  being  duly 
proved,  is  competent  evidence  of  the  fact  of  payment.  Hence, 
where  the  payment  was  hi  discharge  of  a  pre-existing  liabil- 
ity of  defendant  (such  liability  or  his  admission  of  it  being 
of  course  otherwise  proven),  the  appropriate  evidence  of  that 
discharge,  as  between  him  and  the  payee,  is  competent  evi- 
dence against  him  and  in  favor  of  the  plaintiff.12  If  the 


5Printup  v.  Mitchell,  17  Ga. 
558;  Davidson  v.  Berthoud,  1  A. 
K.  Marsh.  (Ky.)  353. 

•Carmarthen,  etc.,  Ry.  Co.  v. 
Manchester,  etc.,  Ry.  Co.,  L.  R. 

8  C.  P.  685;  Leatherbury  v.  Ben- 
nett, 4  Harr.  &  M.  392. 

7  Davis  v.  Shreve,  3  Litt.  (Ky.) 
260;  Keykendall  v.  Greer,  3  Coldw. 
(Tenn.)  463;  Dunn  v.  Slee,  Holt 
N.  P.  C.  399;  Harrison  v.  Harrison, 

9  Ala.  73. 

8  Davies  v.  Humphreys  (6  Mees. 
&  W.  153,  s.  c.,  4  Jur.  250),  even 
if    plaintiff   might    but    does    not 
testify   (Middleton  v.  Melton,  10 
B.  &  C.  317,  325);  and  has  even 
been  held  evidence  of  all  material 
facts  stated  in  it — e.  g.,  that  the 
debt   was   originally  incurred    for 
the  benefit  of  one  of  the  joint  debt- 
ors.   Davies  v.  Humphreys  (above). 


9  Paragraph  12  (above). 

10  Hall   v.   Hall,    1    Mass.    101. 
One  who  sues  for  re-imbursement 
for  paying  by  mistake  an  assess- 
ment  on  his  neighbor's  land,  must 
give    some    evidence    of    a    legal 
assessment^ (Weinberger  v.  Fauer- 
bach,    14    Abb.    Pr.    N.    S.    91); 
otherwise    as    to    regular    annual 
taxes    (Bowman    v.    Downer,    28 
Vt.    532;   and   see   Hall    v.    Hall, 
1    Mass.    101,    where    the   judges 
were     equally     divided     on     the 
point) . 

11  Cluggage    v.    Swan,    4    Binn. 
(Penn.)    150;   and   see   Russell   v. 
Whiteside,  5  111.  (4  Scam.)  7. 

12  See    Sluby    v.    Champlin,    4 
Johns.  461.     Satisfaction  of  a  de- 
cree may  be  proved  without  pro- 
ducing a  copy  of  the  decree  itself. 
Davidson  r.  Peck,  4  Mo.  438. 


MONEY    PAID    TO    DEFENDANT  S   USE 


703 


debt  paid  subsisted  in  a  written  instrument,  shown  to  have 
been  hi  possession  of  the  payee  thereof,1^  the  plaintiff's  pro- 
duction of  the  instrument,  with  the  written  receipt,  if  any, 
(its  execution  by  the  payee  being  duly  proved  if  required,) 
is  competent  evidence  of  payment.14  And,  hi  any  case,  the 
receipt  given  by  the  payee  is  competent  evidence  of  the 
fact  of  payment  whenever  there  is  other  evidence  connect- 
ing defendant  with  the  payee  and  the  debt  paid, — as,  for 
instance,  where  defendant  requested  plaintiff  to  settle  for 
him  with  a  speckled  creditor,15  or  where  the  payment  was 
of  a  joint  obligation  of  both  parties,16  or  a  debt  for  which 
plaintiff  was  bound  as  surety.17 


13  Mygatt  v.  Pruden,  29  Geo.  43. 

14  See  Jessup  v.  Gray,  7  Blatchf . 
332;  Bayne  v.  Stone,  4  Esp.  13; 
Bracken  v.  Miller,  4  Watts  &  S.  102, 
112;  Chandler  v.  Davis,  47  N.  H. 
462;  even  without  plaintiff's  testi- 
mony.   Mills  v.  Watson,  1  Sweeny, 
374.     Contra,   Mills  v.   Hyde,   19 
Vt.  59.    And  is  the  best  evidence, 
and   should   be   produced   or   ac- 
counted for  unless  defendant  has 
admitted    the    payment    and    ex- 
pressly or  tacitly  promised  to  re- 
imburse it,  in  which  case  the  burden 
may  be  thrown  on  him  to  prove 
the  instrument.    Chappell  v.  Bray, 
6  H.  &  N.  145. 

16  Sherman  v.  Crosby,  11  Johns. 
148;  approved  in  3  Wall.  148. 
The  person  to  whom  performance 
of  an  act  is  agreed  to  be  made,  is 
competent  to  acknowledge  such 
performance.  Fenner  v.  Lewis, 
10  Johns.  38.  Whether  the  prin- 
ciple stated  in  the  text  applies  to 
receipts  of  firm  creditors  in  favor 
of  one  who  assumed  to  pay  the 
firm  debts  generally,  is  not  well 
settled.  Newell  r.  Robert*,  13 


Conn.  63;  Scott  v.  Russell,  36 
Ga.  484. 

"Ballance  v.  Frisbie,  3  111. 
(2  Scam.)  63.  Contra,  Thomas 
v.  Thomas,  2  J.  J.  Marsh.  60, 
64;  Ford  t>.  Smith,  5  Cal.  314. 

17  Prather  v.  Johnson,  3  Harr.  & 
J.  487;  approved  in  3  Wall.  149; 
Sluby  v.  Champlin,  and  Mills  v. 
Watson,  cited  above.  Receipts  by 
the  holder  of  a  note,  entered  on  an 
execution  issued  at  his  suit  against 
plaintiff  as  indorser,  are  competent 
to  prove  payment  as  against  the 
maker.  Garnsey  v.  Allen,  27  Me. 
366.  But  a  mere  receipt  of  the 
sheriff  is  not  evidence  that  plain- 
tiff's payment  discharged  the  ex- 
ecution against  the  defendant. 
Stone  v.  Porter,  4  Dana  (Ky.),  207. 
In  the  case  of  money  charged  in  the 
accounts  of  one  acting  in  a  trust 
capacity,  the  receipts  of  the  pay- 
ees are  sufficient,  especially  if  the 
payees  are  dead  or  beyond  juris- 
diction. Shearman  v.  Atkins,  4 
Pick.  283;  approved  in  3  Wall.  148, 
as  authority  for  treating  them  as 
primary  evidence.  The  tax  col- 


704  MONEY   PAID    TO    DEFENDANT'S   USE 

When  the  receipt  of  the  payee  is  thus  competent,  it  is 
prima  facie  sufficient  evidence  of  payment,  without  producing 
or  accounting  for  the  absence  of  the  payee. 

If  the  one  who  gave  the  receipt  is  produced,  he  may  use  it 
to  refresh  his  memory,  or  to  testify  from,  and  the  receipt  then 
becomes  admissible,  independently  of  any  other  ground  of 
competency,  if  it  was  made  by  the  witness  at  or  presently 
after  the  time  of  payment.18 

15.  Judgment  against  Plaintiff  in  Action  of  which  Defend- 
ant had  Notice. 

When  the  money  sued  for  was  paid,  pursuant  to  a  judg- 
ment recovered  by  the  third  person  against  plaintiff,  the 
judgment  is  competent  evidence  against  the  defendant  to 
prove  the  fact  of  the  judgment  and  the  sum  paid.  If  the  ac- 
tion was  defended  by  the  plaintiff,19  the  judgment  is  evi- 
dence of  the  facts  on  which  it  was  founded,  in  the  following 
cases,  viz.,  if  defendant  was  joined  with  plaintiff  as  a  co- 
party  in  the  action; 20  or  had  agreed  to  abide  the  result, 

lector's  receipts  are  higher  evidence  contemporaneous  declaration  of 
of  the  administrator's  payment  of  witness  to  supply  what  he  has 
taxes  on  the  estate,  than  the  tes-  since  forgotten,  see  Shear  v.  Van 
timony  of  a  witness  to  the  fact  of  Dyke,  10  Hun,  528. 
payment.  The  witness's  testimony  19  Otherwise  of  a  judgment  con- 
is  not  competent  if  the  receipts  fessed,  note  3  (below), 
can  be  produced.  Hall  v.  Hall,  20  Davidson  v.  Peck,  4  Mo.  438; 
1  Mass.  101.  The  production  of  Hare  v.  Grant,  5  Reporter,  183. 
the  bond  to  the  collector,  on  which  Whether  conclusive,  see  Dent  v. 
plaintiff  was  surety,  with  the  col-  King,  1  Ga.  200. 
lector's  receipts,  are  competent,  A  judgment  recovered  against 
and  prima  fade  sufficient.  Sluby  the  plaintiff  and  defendant  jointly 
v.  Champlin,  4  Johns.  461.  was  held  admissible  as  evidence 
18  See  McCormick  v.  Pennsyl-  of  all  facts  therein  determined 
vania  Central  R.  R.  Co.,  49  N.  Y.  which  were  pertinent  to  the  plain- 
303,  rev'g  3  Alb.  L.  J.  129;  Lathrop  tiff's  right  to  indemnity  for  the 
•p.  Bramhall,  64  N.  Y.  365;  Halsey  judgment  so  paid.  Fulton  County 
r.  Sinsebugh,  15  Id.  485,  489.  As  Gas,  etc.,  Co  v.  Hudson  River  Tel- 
to  case  of  contemporaneous  mem-  ephone  Co.,  200  N.  Y.  287,  93  N. 
orandum  by  another  witness,  or  E.  Rep.  1052. 


MONEY   PAID   TO    DEFENDANT  S   USE 


705 


or  covenanted  against  the  consequences  of  such  an  action; 21 
or  was  primarily  liable  as  the  one  for  whose  debt  or  actual 
default  the  action  was  brought,22  and  had  notice  from  de- 
fendant of  its  pendency,  and  reasonable  opportunity  to 
assume  the  defense  if  he  desired.23  In  these  cases  the  judg- 
ment recovered  is  conclusive  evidence  against  the  present 
defendant,  both  as  to  the  damages  and  costs.24  In  other 


21  Rapelye  v.  Prince,  4  Hill,  119; 
Bridgeport  Ins.  Co.  v.  Wilson,  34 
X.   Y.   275,   rev'g   7   Bosw.   427; 
Thomas  v.  Hubbell,  15  N.  Y.  405. 
Unless  collusion  or  neglect  is  shown. 
Chapin  v.  Thompson,  4  Hun,  779. 
A  variance  as  to  the  manner  in 
which  the  suit  was  brought  is  im- 
material.     Allaire    v.    Oulard,    2 
Johns.  Cas.  52.     But  on  a  mere 
general  promise  to  indemnify,  with- 
out referring  to  suits,  a  judgment 
against  the  plaintiff  does  not  alone 
prove  defendant's  liability,  unless 
he  had  notice  and  opportunity  to 
defend.    Douglass  v.  Rowland,  24 
Wend.  35. 

Where  plaintiff  relies  merely  on 
a  contract  of  indemnity,  and  proves 
that  he  confessed  judgment,  the 
burden  of  proof  is  upon  him,  in  his 
action  against  his  indemnitor,  to 
show  that  the  creditor  was  entitled 
to  as  much  as  the  amount  con- 
fessed. And  this  is  so,  although 
the  indemnitee  has  previously  given 
notice  of  suit  brought  to  his  in- 
demnitor, and  the  latter  has  neg- 
lected to  defend  it.  Stone  v. 
Hooker,  9  Cow.  154. 

22  Mayor,  etc.,  of  Troy  v.  Troy, 
etc.,  R.  R.  Co.,  49  N.  Y.  657,  affi'g 
3  Lans.  270. 

A  judgment  recovered  against 
one  for  causes  for  which  the  de- 


fendant in  the  later  action  for  in- 
demnity was  primarily  liable  was 
held  conclusive  of  the  facts  upon 
which  it  was  recovered  where  the 
defendant  had  notice  of  the  com- 
mencement of  the  former  action 
and  was  invited  to  assist  in  its  de- 
fense. Waterbury  v.  Waterbury 
Traction  Co.,  74  Conn.  152,  50  Atl. 
Rep.  3. 

23  Smith  v.  Compton,  3  B.  &  Ad. 
408;  approved  in  34  N.  Y.  275. 

Where  a  village  gave  the  defend- 
ant due  and  timely  notice  of  an  ac- 
tion on  a  claim  for  which  it  con- 
tended that  the  defendant  was 
primarily  liable,  and  invited  the 
latter  to  direct  the  defense  thereof, 
it  was  held  that  the  judgment  ren- 
dered against  and  paid  by  the  vil- 
lage was  conclusive  against  the 
defendant  in  a  subsequent  action 
for  indemnity.  Port  Jervis  v.  Erie 
R.  Co.,  59  Misc.  623,  111  N.  Y. 
Supp.  851. 

24  Beers  v.  Pinney,  12  Wend.  309, 
and  cases  cited;  Fake  v.  Smith,  2 
Abb.  Ct.  App.  Dec.  76;  Green  v. 
Goings,  7  Barb.  652.     This  rule 
has  recently  been  held  not  to  ap- 
ply, where  the  claim  for  indemnity 
is  not  on  contract,  but  on  a  breach 
of  trust.     Parker  v.  Lewis,  L.  R. 
8  Ch.  1056,  s.  c.,  7  Moak's  Eng. 
529.     What  is  sufficient  notice  is 


706 


MONEY    PAID   TO   DEFENDANT  S   USE 


cases  of  actions  against  plaintiff  alone,  the  judgment  paid, 
with  proof  of  the  relation  of  suretyship  or  indemnity,  is 
competent  prima  fade  evidence  of  the  amount  due  from  de- 
fendant,25 although  there  be  no  provision  to  that  effect  in 
defendant's  contract. 

Since  the  principal  is  not  presumptively  bound  by  the 
judgment,  as  he  was  not  a  party  to  the  action,  the  surety, 
to  make  it  evidence  against  him,  is  bound  to  show  aliunde 
that  it  was  rendered  against  him  upon  a  transaction  against 
which  the  principal  was  bound  to  indemnify  him.26 

The  same  rules  apply  whether  the  judgment  was  foreign 
or  domestic.27 

Parol  evidence  is  competent  to  explain  the  relation  of  the 
parties  to  the  cause  of  action  hi  the  judgment  (in  a  judgment 


not  well  settled.  All  authorities 
agree  that  reasonable  notice  under 
the  circumstances  is  sufficient. 
Compare  Robbins  v.  Chicago  City, 
2  Black,  418,  4  Wall.  657;  Barmon 
v.  Lithauer,  1  Abb.  Ct.  App.  Dec. 
99;  Allaire  v.  Ouland,  2  Johns.  Cas. 
52.  The  rule  is  different  in  an  ac- 
tion for  a  breach  of  warranty. 
Somers  v.  Schmidt,  24  Wise.  417, 
s.  c.,  1  Am.  Rep.  191.  Whether 
costs  of  the  former  suit  can  be  re- 
covered, unless  the  present  plaintiff 
proves  he  gave  notice  to  the  present 
defendant,  is  unsettled.  De  Colyar 
on  Guar.  316;  Pierce  v.  Williams, 
L.  J.  23  Exch.  322;  see  the  N.  Y. 
Stat.  of  1858,  c.  314,  §  3.  Where 
one  defends  an  action  for  debt, 
by  showing  voluntary  payment 
of  the  amount  to  a  sheriff  holding 
an  execution  against  his  creditor, 
he  must  produce  not  only  the  ex- 
ecution and  the  sheriff's  receipt, 
but  also  the  record  of  the  judg- 
ment. Handly  v.  Greene,  15  Barb. 
601. 


Where  an  indemnitee  and  in- 
demnitor  allowed  a  judgment  to 
be  taken  by  default  after  the  latter 
had  received  notice  to  defend,  it 
was  held  that,  in  a  subsequent  ac- 
tion for  indemnity,  the  default 
judgment  was  conclusive  as  to  both 
the  amount  of  damages  and  costs. 
Morette  v.  Bostwick,  56  Misc.  140, 
106  N.  Y.  Supp.  1102. 

25  Dubois  v.  Hermance,  56  N.  Y. 
673,  affi'g  1  Supm.  Ct.  (T.  &  C.) 
293. 

A  judgment  against  a  receiver 
is  not  conclusive  upon  his  sureties; 
before  they  are  to  be  charged  it 
must  be  shown  that  there  was  an 
accounting  and  decree  establishing 
his  inability  to  pay  over  money 
received  by  him  in  his  official  ca- 
pacity. Coe  v.  Patterson,  122  N. 
Y.  App.  Div.  76,  106  N.  Y.  Supp. 
659. 

28  Konitsky  v.  Meyer,  49  N.  Y. 
571.  As  to  successive  actions,  see 
6  Wend.  288. 

"Id. 


MONEY   PAID    TO    DEFENDANT'S   USE  707 

either  upon  contract 28  or  for  tort),29  for  the  purpose  of  show- 
ing that  as  between  them  defendant  was  primarily  liable. 
If  plaintiff  paid  as  the  surety,  etc.,  of  the  defendant,  hi  con- 
sequence of  a  suit  against  himself,  but  does  not  prove  that 
he  gave  defendant  notice  of  the  suit,  defendant  may  show 
that  plaintiff  has  no  claim  to  be  reimbursed;  or  not  to  the 
amount  alleged ;  or  that  he  made  an  improvident  compromise 
and  that  defendant,  had  he  received  notice,  might  have 
done  better.30 

16.  Medium  of  Payment. 

Under  the  common-law  procedure,  proof  of  the  transfer 
of  property,  whether  land,  chattels,  or  things  in  action,  ac- 
cepted by  the  defendant's  creditor,  hi  payment,  as  money, 
is  admissible  under  an  allegation  of  money  paid  to  defend- 
ant's use,31  but  the  mere  giving  of  one's  own  non-negotiable 
obligation  to  the  creditor  is  not,32  nor  is  the  giving  of  one's 
own  negotiable  obligation,  unless  expressly  accepted  in  pay- 
ment,33 or  unless  wrongfully  obtained  and  actually  negoti- 

28  Davidson  v.  Peck,  4  Mo.  438,  When  a  surety,  with  the  consent 
paragraph  8  (above).  of  his  co-surety,  paid  their  obligation 

29  Paragraph  8  (above).  with  a  check  drawn  on  the  funds  of 

30  Smith  v.  Compton,  3  B.  &  Ad.  a  corporation  of  which  he  was  an 
408.    Compare  34  N.  Y.  275.  officer,  and  the  amount  of  the  said 

31  Randall  v.  Rich,  11  Mass.  494;  check  was  charged  against  him  by 
Ainslie    v.    Wilson,    7    Cow.    662;  the   corporation,   it  was  held   he 
Garnsey    v.    Allen,    27    Me.    366;  could  maintain  an  action  against 
Jones  v.  Cooke,  3  Dev.  N.  C.  Law,  the  co-surety's  estate  for  contribu- 
112;  Ralston  v.  Wood,  15  111.  159,  tion.      Meeske    v.    Pfenning,    120 
171;  Hulett  v.  Soullard,  26  Vt.  295,  Mich.  474,  79  N.  W.  Rep.  795. 
298.     Contra,  Stroud  v.  Pierce,  6  32  Cases  in  note  1,  paragraph  10 
Allen  (Mass.),  413.     As  to  value  (above);  unless,  perhaps,  if  paya- 
of  foreign  money,  see  chapter  XII,  ble  to  a  stranger.     Parker  v.  Os- 
paragraph    20.     Where    plaintiffs,  good,  4  Gray  (Mass.),  456. 

who  were  agents  to  purchase  for  33Van    Nostrand    v.    Reed,    1 

defendants,    proved    delivery    of  Wend.  424. 

their  own  merchandise  to  defend-  It  has  been  held  that  where  one 

ants,  instead  of  payment  of  pur-  of  a  number  of  co-sureties  induced 

chase  price — Held  a  total  failure  of  then*  creditor  to  accept  his  personal 

proof.    Field  v.  Syms,  2  Robt.  35.  note  in  discharge  of  their  original 


708 


MONEY   PAID    TO   DEFENDANT  S   USE 


ated,  or  wrongfully  negotiated  in  fraud  of  plaintiff's  rights.34 
Under  the  new  procedure,  the  payment  will  usually  be 
alleged  as  made;  or  if,  on  the  trial,  there  be  a  variance  in 
the  proof,  it  will  be  a  question  for  the  court  or  referee,  whether 
to  disregard  or  amend  it,  or  not.  If  the  payment  was  of  a 
precedent  debt,  and  was  made  with  negotiable  paper,  plain- 
tiff may  recover  on  showing,  either  35  that  the  creditor  ex- 
pressly accepted  the  paper  in  payment,36  or  that  the  paper 
has  been  paid.  If  he  proves  that  even  his  own  negotiable 
bill  or  note  was  expressly  accepted  in  payment  of  defendant's 
debt,  he  may  recover  against  defendant  without  proving  that 
such  paper  has  been  paid.37  If  the  payment  was  by  giving 
any  other  obligation  binding  himself  to  pay,  he  must  prove 
payment  on  such  obligation,38  unless  there  was  an  express 
promise  of  defendant,  to  pay  him  if  he  would  incur  the  ex- 


pense 


39 


obligation,  he  could  maintain  an 
action  for  contribution  by  his  co- 
sureties. Green  v.  Anderson,  19 
Ky.  Law  Rep.  1187,  43  S.  W.  Rep. 
195. 

"Bleadon  v.  Charles,  7  Bing. 
246. 

35  See  Dunnigan  v.  Crummey,  44 
Barb.  528,  and  cases  cited. 

And  where  a  surety's  personal 
note  was  accepted  by  his  co-surety 
in  satisfaction  of  his  claims  for  con- 
tribution, the  surety,  it  was  held, 
could  maintain  an  action  for  re- 
imbursement. Stone  v.  Hammell, 
3  Cal.  Unrep.  Gas.  128,  22  Pac. 
Rep.  203. 

36  Howe  v.  X.  Y.  &  Erie  R.  R.  Co., 
37  N.  Y.  297;  Bennett  v.  Cook,  45 
Id.   268;   Witherby   v.   Mann,    11 
Johns.  518. 

37  Cummings  v.  Hackley,  8  Johns. 
202.      As     to     the     presumption 


whether  paper  was  accepted  in 
payment,  see  13  N.  Y.  167,  46 
Id.  637. 

Where  it  appeared  that  a  prin- 
cipal's creditor  accepted  SI 50  in 
cash  and  the  surety's  note  for 
$350  in  satisfaction  of  his  claim, 
a  judgment  for  $500  in  favor  of  the 
surety  and  against  his  principal 
was  upheld,  even  though  the  note 
was  not  then  due.  Auerbach  v. 
Rogin,  40  Misc.  (N.  Y.)  695,  83 
X.  Y.  Supp.  154. 

38  And   it   seems   that   payment 
pursuant  to  such  obligation,  though 
even    after    suit    brought    would 
sustain  the  action.     9  Mass.  548, 
23  Pa.  St.  464. 

39  Bullock  v.  Lloyd,  2  Carr.  &  P. 
119;    Smith    v.    Pond,    11    Gray 
234;  but    in  this  case  the  action 
was  on  a  promise  of  indemnity,  not 
for  money  paid. 


MONEY    PAID    TO    DEFENDANT'S    USE  709 

17.  Amount. 

It  has  been  held  that  where  plaintiff  is  compelled  to  pay 
defendant's  debt,  and  does  so  by  transferring  property  at  a 
valuation,  or  any  sufficient  consideration  other  than  money, 
which  is  received  by  the  creditor  as  of  equivalent  value, 
defendant  cannot  reduce  the  recovery  by  offering  evidence 
that  the  property  was  of  less  value;  for  it  is  enough  for  him 
that  he  was  discharged  by  what  his  creditor  accepted  as  worth 
the  full  amount  of  the  debt.40  But  if  the  transaction  was  a 
compromise  on  payment  of  a  less  sum  than  was  due, — es- 
pecially if  plaintiff  stood  in  a  relation  of  trust  and  confidence, 
as  where  he  acted  as  defendant's  agent  in  settling  a  debt, 
at  less  than  its  full  value,  or  hi  a  depreciated  currency,— 
he  can  only  recover  the  sum  he  actually  paid;  and  the  same 
rule  applies  to  a  surety.41 

18.  Source  of  the  Fund  Paid. 

A  money  payment  shown  to  have  been  made  by  plaintiff 
will  ordinarily  be  presumed  to  have  been  made  from  his 
own  funds;  but  when  there  is  anything  in  the  relation  of  the 
parties  or  the  character  in  which  plaintiff  sues,  to  allow  of 
doubt,  he  should  be  prepared  with  evidence  on  the  point.42 

40  Garnsey  v.  Allen,  27  Me.  366.          Though   the   case   of   Partridge 
NELSON,  J.,  was  of  the  same  opin-  v.   Moynihan,  59  Misc.   234,   110 
ion  in  Bonney  v.  Seeley,  2  Wend.  N.  Y.  Supp.  539,  came  before  the 
482;  and  this  is  clearly  the  sound  court  in  the  form  of  a  motion  for 
rule,   although   in   that   case   the  leave  to  issue  an  execution,  it  was 
Supreme  Court  held  that  evidence  there  said   that   "payment  by  a 
of  the  actual  value  was  admissible  third  person  of  a  sum  less  than  the 
in  reduction,  but  in  that  case  there  amount  due,  with  the  understand- 
does  not  seem  to  have  been  any  ing  that  it  should  be  in  full  satis- 
other  evidence  of  a  valuation  than  faction  thereof,  is  a  valid  accord 
that  implied  in  the  consideration  and    satisfaction,    and    no    action 
mentioned  in  the  deed,  s.  P.  Ral-  will  be  against  the  debtor  to  re- 
ston  v.   Wood,   15   111.    159,    171;  cover  the  balance." 

Hulett  v.   Soullard,   26  Vt.    295,          42  In  an  action  by  plaintiff  in 

298.  his  private  capacity,  he  may  be 

41  Reed  v.  Morris,  2  Mylne  &      asked  whether  the  loan  sued  for  was 
C.  361.  made  as  his   private  transaction, 


710  MONEY    PAID    TO    DEFENDANT'S    USE 

Thus,  where  a  partner  is  compelled  to  pay  a  firm  debt,  the 
presumption  is  that  he  pays  with  firm  money.43  So,  ad- 
vances made  by  one  of  a  committee  holding  funds,  are  not 
presumed  to  be  of  his  own  money.44  If  co-plaintiffs  allege 
a  joint  payment  they  must  show  payment  out  of  joint  funds, 
by  proof  of  partnership  or  otherwise.45  The  declaration 
of  the  person  who  paid  the  money,  made  at  the  time  of 
paying  it,  as  to  whose  fund  it  was,  is  competent  in  his  favor, 
as  part  of  the  res  gestce.46 

19.  Object  and  Application  of  the  Payment. 

Where  a  payment  has  been  proved  to  have  been  made 
through  an  agent  by  correspondence,  the  letters  of  the  agent 
enclosing  the  receipts,  and  the  entries  thereupon  made  by 
the  plaintiffs  in  their  accounts,  are  admissible  in  connection, 
as  part  of  the  res  gestw,  to  establish  necessary  dates,  etc.47 
The  conversation  accompanying  an  act  of  payment,  and 
characterizing  it,  is  admissible  as  part  of  the  res  gestce,  to 
show  the  application  made  of  it.48  And  a  witness  who  was 

or  was  his  act  as  a  receiver.    Davis  was  too  remote,  and  not  competent 

v.  Peck,  54  Barb.  425.  to  show  that  the  advances  were 

43  Hill  v.  Packard,  5  Wend.  375.  his  own  money.    Elliott  v.  Gibbons, 

"  Bassford  v.  Brown,  22  Me.  9.  31   N.   Y,  67.     Compare  further 

45  Doremus  ».  Selden,  19  Johns,  chapter  XII,  paragraph  5,  of  this 
213;  see  also  Coffee  v.  Tevis,  17  vol.  and  next  chapter. 

Cal.  239.  «  See  Beaver  v.  Taylor,  1  Wall. 

46  Carter  v.  Beals,  44  N.  H.  408;  637.     This  case  and  those  referred 
Bank  of  Woodstock  v.  Clark,  25  to  in  notes  to  paragraph  5  of  this 
Vt.  308.    In  Beasley  v.  Watson  41  chapter,  must  be  deemed  to  over- 
Ala.  234,  a  guardian's  declaration  rule,    to    this    extent,    Jordan    v. 
that  the  payment  was  his  ward's  Wilkins,  3 'Wash.  110. 

money  was  admitted;  and  see  36  The  time  and  pay  roll  is  admis- 
Ala.  670,  10  M.  &  W.  572.  But  sible  in  evidence  in  connection 
where  plaintiff  was  guardian  of  with  the  oral  testimony  of  the  fore- 
property  of  infants,  and  adminis-  man  who  superintended  the  work 
trator  of  their  father's  estate,  and  and  kept  the  time  of  the  men. 
made  advances  to  the  widow  while  Dobbins  v.  Graer,  50  Colo.  10,  114 
she  was  supporting  the  wards —  Pac.  Rep.  303. 
Held  that  evidence  that  he  had  no  48  Bank  v.  Kennedy,  17  Wall, 
funds  as  guardian  during  the  period  19;  Bank  of  Woodstock  v.  Clark, 


MONEY   PAID    TO    DEFENDANT'S    USE 


711 


a  party  to  the  transaction,  and  was  present  and  cognizant  of 
the  circumstances,  may  be  asked  on  whose  behalf  the  pay- 
ment was  made,  and  whether  it  was  made  in  consequence  of 
the  request,  and  what  was  its  purpose  and  intent,49  subject, 
of  course,  to  cross-examination.50  But  on  the  question  as  to 
whether  the  payment  was  made  on  the  credit  of  defendant 
or  another  person,  evidence  of  their  relative  wealth  or  pov- 
erty is  incompetent.51 

20.  Demand  and  Notice. 

Where  plaintiff  sues  for  contribution  on  having  paid  a 
joint  debt,  he  need  not  prove  that  a  demand  was  made  on 
him  before  payment; 52  and  where  he  has  been  sued,  he  need 


25  Vt.  308;  Allen  v.  Duncan,  11 
Pick.  308;  but  not  subsequent 
declarations  as  narratives  of  past 
events,  made  by  one  still  living, 
unless  they  are  the  admission  of 
him  against  whom  they  are  ad- 
duced. Dunn  v.  Slee,  Holt,  N.  P. 
399.  Evidence  admitted  thus  as 
part  of  the  res  gestce  does  not  have 
the  effect,  if  the  defendant  was 
absent,  to  bind  him  as  a  represen- 
tation by  him,  unless  there  is 
other  evidence  of  the  authority 
of  the  declarant  to  represent  him. 
Second  Nat.  Bank  r.  Miller,  2 
Supm.  Ct.  (T.  &  C.)  107.  But  it 
is  nevertheless  admissible,  for  the 
purpose  simply  of  characterizing 
the  act  of  the  party  present.  See 
last  note  to  paragraph  15  of  pre- 
ceding chapter.  When  made  by 
an  alleged  agent  of  the  absent 
party,  its  effect  to  bind  him  as  a 
declaration  must  depend  on  evi- 
dence of  authority. 

49  Sweet  v.  Tuttle,  14  N.  Y.  465; 
Richmondville  Seminary  v.  Mc- 
Donald, 34  Id.  379;  Bank  v.  Ken- 


nedy (above).  To  the  contrary 
see  56  N.  Y.  618,  57  Id.  651. 

80  See  chapter  XII,  paragraph 
6,  of  this  vol. 

51  Wheeler  v.  Packer,  4  Conn. 
102,  s.  P.,  56  N.  Y.  334,  rev'g  7 
Lans.  381,  on  this  point;  Second 
Nat.  Bank  v.  Miller,  2  N.  Y.  Supm. 
Ct.  (T.  &  C.)  107,  s.  P.,  Trow- 
bridge  v.  Wheeler,  1  Allen  (Mass.), 
162.  In  Wheeler  v.  Packer  (4 
Conn.  102),  HOSMER,  Ch.  J.,  ex- 
cludes the  evidence,  saying  aptly 
"If  poverty  will  authorize  infer- 
ences concerning  a  person's  agree- 
ment, so  will  wealth  and  avarice, 
and  generosity  and  benevolence." 
Pollock  v.  Brennan  (39  Super. 
Ct.  [J.  &  S.]  477),  on  the  question 
of  a  sale  is  not  necessarily  to  the 
contrary,  for  there  the  question 
was  whether*  a  business  properly 
belonged  to  the  husband  or  wife, 
and  the  very  question  seems  to 
have  been,  to  whom  did  the  capi- 
tal belong? 

"Pitt  v.  Purssford,  5  Jur. 
611. 


712  MONEY    PAID    TO    DEFENDANT'S   USE 

not  generally  prove  notice  of  the  suit  to  defendant,  except 
for  the  purpose  of  making  the  judgment  recovered  against 
him  prima  fade  or  conclusive  evidence  of  the  amount  of 
defendant's  obligation,  etc.,  and  of  recovering  all  his  costs.53 
Demand  on  defendant,  (which  should  be  proved  where  he 
is  not  in  default  without  it,)  if  made  solely  by  letter,  should 
be  proved  by  notice  to  produce  the  letter,  and  if  defendant 
does  not  comply,  by  giving  secondary  evidence  of  its  con- 
tents.54 A  letter-press  copy  can  only  be  used  as  secondary 
evidence,55  but  a  duplicate  original,  written  and  signed  at 
the  same  tune  with  the  one  sent,  is  primary  evidence,  ad- 
missible without  giving  notice  to  produce  the  counterpart.56 
An  independent  oral  demand,  though  made  at  the  same  time 
with  delivery  of  a  written  one,  is  competent; 57  but  the  con- 
versation had  with  the  mere  bearer  of  a  written  demand  is 
not  competent  without  producing  or  accounting  for  the 
writing.58  An  account  in  plaintiff's  handwriting,  produced 
from  defendant's  possession,59  or  otherwise  shown  to  have 
been  presented  to  him,  is  competent  to  go  to  the  jury;  and, 
with  the  omission  to  make  any  objection,  is  prima  facie 
evidence  of  the  correctness  of  the  items  as  to  amount,  etc.60 
If  defendant's  oral  admissions 61  are  adduced  in  evidence, 

63  See    paragraph    15    (above).          M  Hubbard  v.  Russell,  24  Barb. 

This  being  a  collateral  notice,  it  404. 

seems    that    the    written    notice          57  Smith    v.    Young,    1    Campb. 

need  not  be  produced  or  accounted  439. 

for,  unless  some     question   arises          58  Glenn  v.  Rogers,  3  Md.  312. 
on  its  terms.      See  McFadden  v.          M  Nichols  v.  Alsop,  10  Conn.  263. 
Kingsbury,  11  Wend.  667.  60  See     chapter     on     ACCOUNTS 

54  Weeks  v.  Lyon,  18  Barb.  530.  STATED. 

The  defendant  was  held  to  have  61  "It  is  not  necessary  that  ad- 
waived  any  right  to  a  demand  be-  missions  of  a  party  to  an  action, 
fore  suit  for  contribution  as  a  co-  in  order  to  be  evidence,  should  be 
surety  on  a  note  which  the  plain-  of  facts  within  the  knowledge  of 
tiff  had  paid,  where  in  his  answer,  the  party  making  them.  Such  ad- 
he  denied  all  liability.  Shuford  missions  do  not  come  within  the 
v.  Cook,  164  N.  C.  46,  80  S.  E.  category  of  hearsay  evidence." 
Rep.  61.  Reed  v.  McCord,  18  App.  Div. 

55  Foot  v.  Bentley,  44  N.  Y.  166.  381,  384-385. 


MONEY   PAID   TO   DEFENDANT'S   USE  713 

he  is  entitled  to  have  the  whole  statement  taken  together, 
to  the  extent  of  all  that  was  said  by  the  same  person  in 
the  same  conversation  that  would  in  any  way  qualify  or 
explain  the  part  adduced  against  him,  or  tend  to  destroy  or 
modify  the  use  which  the  adversary  might  otherwise  make  of 
it,  but  no  further.62  But  the  jury  may  discredit  the  con- 
nected denial,  while  giving  credit  to  the  admission.63  The 
fact  that  he  questioned  part  of  the  items  only,  strengthens 
the  presumption  that  others  are  correct.64  His  objecting 
to  the  whole  account  on  other  grounds,  explains  the  omis- 
sion of  any  objection  to  the  correctness  of  items,  sufficiently 
to  deprive  it  of  the  effect  of  an  admission.65 

21.  Defenses. 

If  plaintiff  proves  a  request  to  pay  a  particular  demand, 
is  no  defense  that  the  demand  was  not  legally  due,  as  for 
instance  where  it  was  a  void  assessment,  or  even  a  contract 
usurious  on  its  face; 66  but  illegality,  such  that  the  act  of 

62  Rouse  v.   Whited,   25   N.   Y.  sence  of  the  other  party,   where 

170,  rev'g  25  Barb.  279.     "The  they  are  not  in  rebuttal  of  anything 

rule  appears  to  be  firmly  settled,  said   by   the   witness.      Noble   v. 

both  as  to  a  conversation  or  writ-  White,  103  Iowa,  352,  72  N.  W. 

ing,  that  the  introduction  of  a  part  Rep.  556. 

renders  admissible  so  much  of  the  63  Craighead  v.  The  State  Bank, 

remainder  as  tends  to  explain  or  1  Meigs,  199.      (But  not  arbitra- 

qualify  what    has    been   received,  rily.     1  Abb.  Ct.  App.  Dec.  111.) 

and  that  it  is  to  be  deemed  a  qual-  64  Id. 

ification  which  rebuts  and  destroys  65  Quincy  v.  White,  63  N.  Y.  370. 

the  inference  to  be  derived  from  or  M  As  to  the  form  and  effect  of 

the  use  to  be  made  of  the  portion  denials,  see  Simmons  v.  Sisson,  26 

put  in  evidence.    (Rouse  v.  Whited,  N.  Y.  264. 

25  N.  Y.  170;  Forrest  v.  Forrest,  6,  The  fact  that  the  payment  was 

Duer,  126-7;  Gildersleeve  v.  Lan-  made  ujider  a  contract  which  was 

don,  73 VN.  Y.  609.)"    Gratton  v.  void  under  the  Statute  of  Frauds 

Metropolitan  Life  Ins.  Co.,  92  N.  is  no  defense.    Minder,  etc.,  Land 

Y.  274,  284.     See  also  Collins  v.  Co.  v.  Brustuen,  29  S.  D.  562,  137 

Sherbet,  114  Ala.  480,  21  So.  Rep.  N.  W.  Rep.  282. 

997.     A  party  cannot  testify  to  Where  the  plaintiff  has  paid  a 

declarations  made  by  him  in  his  bill  for  services  rendered  by  an  at- 

own  favor  to  a  witness,  in  the  ab-  torney  to  the  defendant,  the  value 


714 


MONEY   PAID   TO   DEFENDANT'S   USE 


paying  was  illegal,  must  be  shown.67  Although  the  claim 
paid  was  not  merely  void  but  illegal,  and  plaintiff  knew  it, 
yet  if  the  money  was  advanced  on  a  new  contract  it  is  re- 
coverable;68 though  it  would  be  otherwise  if  plaintiff  was 
particeps  criminis  in  the  original  transaction.69 

Defendant  may  prove  hi  his  exoneration  that  the  pay- 
ment was  from  a  fund  plaintiff  held  for  his  indemnity; 70 
and  evidence  that  plaintiff  received  such  a  fund,71  or  was 
party  to  a  proceeding  in  which  he  was  entitled  to  it,  throws 
on  plaintiff  the  burden  of  accounting  for  its  disposition.72 
The  statute  of  limitations  is  available  as  to  any  payment, 
though  only  a  part  payment,  not  made  within  the  six  years.73 


of  the  attorney's  services  is  imma- 
terial. McNerney  v.  Barnes,  77 
Conn.  155,  58  Atl.  Rep.  714. 

67  Mosely  v.  Boush,  4  Rand.  (Va.) 
302;  McElroy  v.  Melear,  7  Coldw. 
(T.)  140. 

When  an  auctioneer  makes  cer- 
tain disbursements  in  selling  goods 
for  the  defendant,  who  accepts  the 
benefits  of  the  sale,  the  latter  can- 
not defend  an  action  by  the  auc- 
tioneer on  the  ground  that  the 
auctioneer  was  not  duly  licensed. 
Robinson  v.  Green,  3  Mete.  (Mass.) 
159. 

68  Armstrong  v,  Toler,  11  Wheat. 
258. 

"Brown  v.  Tarkington,  3  Wall. 
381;  Pitcher  v.  Bailey,  8  East,  171. 
Compare  Knowlton  v.  Congress 
Spring  Co.,  5  Reporter  166,  and 
contrary  decision  in  57  N.  Y.  518. 

One  who  knows  that  certain  pro- 
ceedings brought  against  the  de- 
fendant are  unlawful  and  never- 
theless pretends  to  befriend  him 
and  makes  certain  payments  to 
help  him  out  of  the  difficulty,  has 
no  legitimate  claim  against  the  de- 


fendant for  money  so  advanced. 
Storrs  v.  Scougale,  48  Mich.  387, 
12  N.  W.  Rep.  502. 

70  Gorrpel  v.  Swinden,  1  D.  &  L. 
888. 

A  denial  that  the  plaintiff  had 
"paid  out  any  money  or  moneys 
of  his  own"  constitutes  no  defense. 
It  is  immaterial  from  what  source 
the  money  expended  by  the  plain- 
tiff was  obtained.  Van  Duzer  v. 
Towne,  12  Colo.  App.  4,  55  Pac. 
Rep.  13. 

71  Fielding    v.    Waterhouse,    40 
Super.  Ct.  (J.  &  S.)  427,  and  cases 
cited;  Ramsey  v.  Lewis,  30  Barb. 
403. 

72  Cockayne  v.  Sumner,  22  Pick. 
117. 

73  Davis  v.  Humphreys,  6  M.  & 
W.  153;  De  Colyar  on  G.  318. 

An  accommodation  indorser  who 
sued  the  maker  of  a  note  to  recover 
money  paid  upon  it  was  held  to 
have  proceeded  timely  where  he 
commenced  his  action  within  six 
years  from  the  date  of  making  his 
payments,  notwithstanding  the 
note  was  outlawed.  Blanchard  v. 


MONEY   PAID    TO   DEFENDANT  S   USE 


715 


Blanchard,  61  Misc.  497,  113  N. 
Y.  Supp.  882. 

A  purchaser  of  a  mortgage  ex- 
ecuted by  a  principal  to  indemnify 
his  surety  could,  in  an  action  by  the 
surety  to  foreclose,  avail  himself  of 
a  plea  of  the  statute  of  limitations 
which  would  have  been  available 
to  the  principal  had  the  action  been 
brought  against  him.  May  v. 


Ball,  108  Ky.  180,  56  S.  W.  Rep. 

7. 

With  respect  to  the  claim  of  a 
co-surety  against  his  principal  for 
the  amount  paid  in  contribution, 
the  statute  of  limitations  begins 
to  run  at  the  time  of  the  contribu- 
tion. Stone  v.  Hammell,  83  Cal. 
547,  23  Pac.  Rep.  703,  17  Am.  St. 
Rep.  272,  8  L.  R.  A.  425. 


CHAPTER  XIV 

ACTIONS  TO  RECOVER  BACK  MONEY  PAID  BY  PLAINTIFF 
TO  DEFENDANT  UNDER  MISTAKE,  DURESS,  EXACTION 
OR  FRAUD,  OR  THE  CONSIDERATION  FOR  WHICH  HAS 
FAILED 

1.  The  payment.  5.  Duress  or  exaction. 

2.  Mistake.  6.  Fraud. 

3.  Subsequent  promise  to  repay.  7.  Failure  of  consideration. 

4.  Forged  or  counterfeit  paper. 

1.  The  Payment. 

In  all  these  classes  of  cases  the  payment  to  be  proved  is 
usually  not  a  payment  to  a  third  person  by  plaintiff,  as  in 
actions  for  Money  Paid  to  Defendant's  Use,  nor  a  payment 
to  defendant  by  a  third  person,  as  in  actions  for  Money  Re- 
ceived to  Plaintiff's  Use,  but  a  payment  directly  from  plain- 
tiff to  defendant,  which  plaintiff  seeks  to  recall  on  the  ground 
that  he  was  under  no  legal  obligation  to  pay,  and  that  de- 
fendant has  no  title  to  the  money.  The  payment  should 
be  shown  to  have  been  in  money,  or  that  which  defendant  re- 
ceived as  money,  or  equitably  ought  to  account  for  as  such.74 
An  allegation  of  money  paid  by  plaintiffs  to  defendant  is 
not  sustained  by  proof  that  they  gave  him  their  negotiable 

74  Moyer  v.  Shoemaker,  5  Barb,  ment  to  show  that  third  persons 

319.  made  payments  for  the  plaintiff's 

Money  paid  by  the  payor,  la-  benefit.     Konz  ?,'.  Henson,  156  S. 

boring  under  a  mistake  of  material  W.  Rep.  (Tex.  Civ.  App.)  593. 

fact,  can  be  recovered  of  the  party  Where    the   plaintiff   made   the 

receiving  it  in  an  action  of  assump-  payment  pursuant  to  an  agreement 

sit,  on  either  of  the  common  counts,  which  he  had  no  right  to  make, 

for  money  had  and  received,  or  the  payment  was  voluntary  and 

for  money  loaned  or  for  money  the    money    is    not    recoverable, 

paid.     Russell  v.  Richard,  6  Ala.  Mt.  Adams,  etc.,  Ry.  Co.  v.  Cin- 

App.  73,  60  So.  Rep.  411.  cinnati,    23    Weekly    Law    Bui. 

It  is  competent  to  prove  pay-  68. 
716 


ACTIONS    FOR   MONEY   PAID   UNDER   MISTAKE,    ETC.      717 

promise  to  pay,  unless  it  was  expressly  accepted  as  cash  in 
absolute  payment,75  or  unless  it  has  been  negotiated  by  de- 
fendant in  fraud  of  plaintiffs'  right.76  The  principles  gov- 
erning the  mode  of  proving  the  payment,  and  the  effect 
of  a  variance,  are  sufficiently  stated  in  the  last  two  chapters 
and  the  next  one. 


2.  Mistake. 

The  burden  of  proof  is  on  the  plaintiff  to  show  the  mis- 
take77 on  which  he  relies.78  Evidence  of  a  mistake  at  the 
time  of  making  the  contract  pursuant  to  which  the  payment 


75  Van    Nostrand    v.    Reed,    1 
Wend.  424. 

76  Bleadon   v.   Charles,   7   Bing. 
246. 

Where  the  plaintiff  has  received 
a  check  with  the  proceeds  of  which 
he  was  to  satisfy  a  judgment  and, 
relying  upon  the  check,  pays  cash 
in  satisfaction  of  the  judgment,  he 
cannot  recover  back  the  money 
paid,  if  the  check  subsequently  is 
not  honored.  Garretson  v.  Joseph, 
100  Ala.  279,  13  So.  Rep.  948. 

77  For  recent  cases  on  the  dis- 
tinction between  mistakes  of  law 
and  of  fact,  see  15  Am.  Rep.  171,  n.; 
Earl  of  Beauchamp,  L.  R.  6  Eng. 
&  J.  App.  223,  s.  c.,  6  Moak's  Eng. 
37;  Carpentier  v.  Minturn,  6  Lans. 
56,   65   Barb.   293;   Holdredge   v. 
Webb,  64  Barb.  9. 

The  burden  of  proof  to  show 
mistake  rests  on  the  plaintiff.  Mc- 
Bride  v.  Grand  Rapids,  47  Mich. 
236,  10  N.  W.  Rep.  353;  Congdon 
v.  Preston,  49  Mich.  204,  13  N.  W. 
Rep.  516. 

The  plaintiff  has  the  burden  of 
establishing  the  mistake  by  clear 
and  satisfactory  proof.  Conn  v. 


Converse,  164  Iowa,  604,  146  N. 
W.  Rep.  49. 

The  burden  of  proof  to  show  ex- 
cessive payment  is  on  the  plaintiff 
throughout  the  case.  Gibbs  v. 
Farmers',  etc.,  Bank,  123  Iowa, 
736,  99  N.  W.  Rep.  703. 

If  an  administrator  pays  a  claim 
before  it  is  allowed  and  subse- 
quently the  court  allows  the  claim 
only  for  a  reduced  amount,  the  ad- 
ministrator cannot  recover  back 
the  excess  paid  by  him.  Fairbanks 
v.  Mann,  19  R.  I.  499,  34  Atl.  Rep. 
1112. 

78  Kirkpatrick  v.  Bank,  2  Hill 
(S.  C.),  577;  Urquhart  v.  Grove,  2 
Rob.  (La.)  207.  In  case  of  a  per- 
son non  sui  juris,  surprise  and  a 
mistake  of  law  may  be  enough. 
Pitcher  v.  Turin  Plankroad  Co.,  10 
Barb.  436. 

Where  the  plaintiff  sues  for  an 
overpayment  on  an  account,  he 
cannot  establish  his  cause  of  action 
by  simply  showing  the  amounts  he 
has  paid ;  he  must  prove  both  sides 
of  the  account.  Wisner  v.  Consol- 
idated Fruit  Jar  Co.,  25  N.  Y.  App. 
Div.  362,  49  N.  Y.  Supp.  500. 


718      ACTIONS    FOR   MONEY    PAID    UNDER   MISTAKE,   ETC. 

was  made,  does  not  raise  a  presumption  that  the  plaintiff 
continued  under  the  mistake  at  the  subsequent  time  of 
payment,  but  the  evidence  must  connect  the  mistake  with 
the  tune  of  payment  also,79  unless  there  is  evidence  of  exac- 
tion and  protest.80  Clear  proof  of  mistake  is  requisite.81 
Mistake  of  fact  is  shown  within  the  rule,  by  proof  either  that 
some  fact  which  really  existed  was  unknown,  or  that  some 
fact  was  supposed  to  exist  which  did  not.82  The  material 


79  Wyman  v.  Farnsworth,  3  Barb. 
369. 

80  Meyer  v.  Clark,  45  N.  Y.  284, 
rev'g  2  Daly,  497. 

"Elting  v.  Scott,  2  Johns.  157; 
Taylor  v.  Beavers,  4  E.  D.  Smith, 
215;  and  see  Mutual  Life  Ins.  Co. 
v.  Wager,  27  Barb.  354;  Cullreath 
v.  Cullreath,  7  Ga.  64;  Kent  v. 
Manchester,  29  Barb.  595,  and 
cases  cited.  For  the  contrary 
notion,  that  in  all  civil  issues  pre- 
ponderance of  probability  is 
enough,  see  Kane  v.  Hibernia  Ins. 
Co.,  10  Vroom,  697,  s.  c.,  23  Am. 
Rep.  239. 

"It  is  the  settled  rule  in  this 
state,  .  .  .  that  whenever,  by  a 
clear  or  palpable  mistake  of  law 
or  fact  essentially  bearing  upon 
and  affecting  the  contract,  money 
has  been  paid  without  considera- 
tion which,  in  law,  honor  or  con- 
science, was  not  due  and  payable, 
and  which,  in  honor  or  good  con- 
science, ought  not  to  be  retained, 
it  may  and  ought  to  be  recovered. 
...  In  such  a  case,  it  is  not  nec- 
essary to  allege  mistake  in  express 
terms.  It  is  only  necessary  to  al- 
lege facts,  from  which  the  conclu- 
sion of  mistake  inevitably  fol- 
lows." Supreme  Council  C.  K.  A. 


v.  Fenwick  et  al.,  169  Ky.  269,  183 
S.  W.  Rep.  906. 

82Rheel  v.  Hicks,  25  N.  Y.  291. 

The  plaintiff  in  purchasing  a  cer- 
tain tract  of  land  paid  for  more  acres 
than  were  actually  included  within 
the  boundaries  of  the  tract,  due  to 
a  miscalculation  of  the  surveyor  in 
computing  the  acreage.  It  was 
held  that  he  could  maintain  an 
action  for  money  had  and  received 
to  recover  what  he  had  paid  for 
the  excess  acreage.  Mobley  v. 
Harrell,  13  Ga.  App.  483,  79  S.  E. 
Rep.  372. 

In  Atlanta  Telephone,  etc.,  Co.  v. 
Fain,  16  Ga.  App.  475,  85  S.  E. 
Rep.  791,  the  court  held  that  there 
was  such  mistake  of  fact  as  to  en- 
title the  plaintiffs  to  recover  money 
'  paid,  where  it  appeared  that  money 
had  been  paid  on  telephone  bills 
under  the  belief  that  a  higher  rate 
had  been  charged  when  in  fact  the 
charges  were  for  an  extension 
phone  which  had  never  been  in- 
stalled. 

The  plaintiff  brokers,  who  had 
received  an  order  to  sell  the  de- 
fendant's stock  in  the  Pittsburgh- 
Westmoreland  Coal  Company, 
upon  notice  from  their  correspon- 
dent that  the  stock  had  been  sold, 


ACTIONS    FOR   MONEY   PAID    UNDER   MISTAKE,    ETC.      719 


facts  intended  by  the  rule  are  those  which  show  that  the 
demand  asserted  did  not  exist,  not  such  as  show  a  mere 
set-off.83  The  rule  applies,  notwithstanding  the  parties 
made  a  jump  settlement  or  an  adjustment  "hit  or  miss," 
if  it  be  shown  that  such  agreement  was  made  under  mistake.84 
Where  the  case  is  free  from  fraud  and  from  negligence  prej- 
udicing defendant,  it  is  not  necessary  for  plaintiff  to  nega- 
tive the  means  of  knowledge  as  well  as  actual  knowledge 
of  the  true  state  of  facts.83  Under  the  general  rule  that  in  the 
interpretation  of  a  writing  the  court  may  receive  all  the  light 
that  surrounding  circumstances  can  throw  upon  its  lan- 
guage 86  evidence  of  the  parties '  knowledge 87  or  ignorance,88 
is  competent,  and  may  be  shown  by  the  testimony  of  the 
party  himself.89  If  a  reformation  of  a  written  contract  is 


paid  the  proceeds  of  the  supposed 
sale  to  the  defendant.  There- 
after they  were  notified  by  their 
correspondent  that  the  notice  of 
the  sale  had  been  a  mistake  and 
that  the  stock  actually  sold  was 
that  of  the  Westmoreland  Coal 
Company.  It  was  held  that  the 
money  had  been  paid  "under  a 
manifest  mistake  of  fact."  Donner 
v.  Sackett,  251  Pa.  St.  524,  97 
Atl.  Rep.  89. 

83  Franklin  Bank  v.   Raymond, 
3  Wend.  72. 

84  Wheadon  v.  Olds,  20  Wend. 
174. 

85  Kelly  v.  Solari,  9  Mees.  &  W. 
54,  s.  c.,  6  Jur.  107;  and  see  Martin 
v.  McCormick,  8  N.  Y.  331. 

Even  though  one  who  sued  to 
recover  money  paid  by  mistake 
had  the  means  of  ascertaining  the 
real  facts  at  the  time  of  payment, 
it  was  held  that  this  fact  was  in- 
sufficient to  defeat  his  action. 
Hinds  «.  Wiles,  12  Ala.  App.  596, 
68  So.  Rep.  556. 


86  See    chapter    V,    paragraphs 
81-84,  of  this  vol.  for  the  fuller 
discussion  of  this  principle. 

87  Lake    v.    Artisans'    Bank,    3 
Abb.  Ct.  App.  Dec.  10. 

88  Reynolds    v.    Commerce    Fire 
Ins.  Co.,  47  N.  Y.  597.    But  ig- 
norance is  not  always  equivalent 
to   mistake.      National    Life   Ins. 
Co.  v.  Minch,  53  N.  Y.  144,  rev'g 
6  Lans.  100. 

Evidence  explaining  the  trans- 
action and  showing  how  the  mis- 
take was  made  is  admissible. 
Pine  Belt  Lumber  Co.  v.  Morrison, 
13  Ga.  App.  453,  79  S.  E.  Rep.  363. 

89  But  his  undisclosed  intent  is 
not    usually    competent.      Dillon 
v.  Anderson,  43  N.  Y.  231;  unless 
motive  is  material.    See  Lewis  v. 
Rogers,  34  Super.  Ct.   (J.  &  S.) 
64.    Nor  is  the  intent  of  the  drafts- 
man competent.    Nevins  v.  Dun- 
lap,  33  N.  Y.  676. 

The  plaintiff  paid  a  certain  sum 
of  money  in  satisfaction  of  the 
defendant's  claims  as  evidenced 


720      ACTIONS   FOR   MONEY    PAID    UNDER   MISTAKE,    ETC. 


necessary,  the  omission  to  demand  that  relief  in  the  com- 
plaint may  be  cured  by  amendment,  or  disregarded.90  Con- 
versations at  the  time  of  payment,  and  forming  part  of  the 
res  gestcs,  are  competent  even  to  contradict  statements  con- 
tained in  writings  of  defendant's  agents  put  in  evidence  by 
plaintiff  to  show  defendant's  receipt  of  the  money.91  Neg- 
ligence hi  making  the  mistaken  payment  is  not  relevant, 
unless  the  situation  of  other  parties  has  been  changed  in 
consequence  of  the  payment; 92  and  if  this  be  so,  the  burden 
of  proving  the  fact  rests  upon  the  defendant.93 


by  two  notes.  In  a  subsequent 
action  to  recover  excess  money 
paid  by  reason  of  having  been 
charged  compound  interest,  the 
plaintiff's  testimony  was  held  com- 
petent as  tending  to  prove  the  true 
consideration  of  the  notes  and  as 
affording  a  proper  basis  on  which 
to  compute  interest.  Smith  v. 
Yancey,  73  So.  Rep.  (Ala.)  477. 

90  Rosboro  v.  Peck,  48  Barb.  96. 

«  Hall  v.  Holden,  116  Mass.  172. 

Conversations  preceding  the 
transaction  are  not  admissible. 
Wilson  v.  Storm,  164  111.  App.  13. 

92  Duncan    v.    Berlin,    11    Abb. 
Pr.  N.  S.  116,  rev'g  5  Robt.  547, 
8.  c.,4  Abb.  Pr.  N.  S.  34;  Lawrence 
v.  Am.  Nat.  Bank,  54  N.  Y.  432. 

Plaintiff  will  not  be  allowed  to 
recover  money  negligently  paid 
by  him  under  a  mistake  of  facts 
if  the  situation  of  the  party  re- 
ceiving it  has  thereby  been  ma- 
terially changed  so  that  his  origi- 
nal position  cannot  be  restored. 
Atlantic  Coast  Line  R.  Co.  v. 
Schirmer,  87  S.  C.  309,  69  S.  E. 
Rep.  439. 

93  Mayer  v.  Mayor,  etc.,  of  N. 
Y.,  63  N.  Y.  455. 


The  burden  of  showing  that  the 
situation  of  the  parties  has  changed 
is  upon  the  defendant.  Walker 
v.  Conant,  65  Mich.  194,  31  N.  W. 
Rep.  786. 

In  order  to  recover  money  paid 
through  mistake  it  is  necessary 
to  make  a  demand  in  order  to  re- 
cover. Gillett  v.  Brewster,  62 
Vt.312,20Atl.Rep.  105. 

Where  the  defendant  knew  at 
the  time  that  the  money  was 
being  paid  him  that  the  amount 
was  in  excess  of  what  was  due  him, 
it  is  not  necessary  to  make  a  de- 
mand for  repayment  in  order  to 
recover.  Bower  v.  Thomas,  64 
Hun,  637,  19  N.  Y.  Supp.  503. 

Where  the  money  of  a  married 
woman  was  paid  to  her  husband's 
creditor  to  settle  a  debt  due  to  the 
creditor  by  her  husband,  and  in 
consideration  that  a  criminal  pros- 
ecution against  him  would  be 
stopped,  she  is  entitled  to  recover 
the  money  so  paid  if  the  creditor 
knew  at  the  time  it  was  paid  that 
it  belonged  to  the  wife.  She  is 
entitled  to  recover  without  mak- 
ing any  demand.  Bank  of  Way- 
nesboro  v.  Walters,  135  Ga.  643, 


ACTIONS   FOR   FORGED   OR    COUNTERFEIT   PAPER        721 


3.  Subsequent  Promise  to  Repay. 

It  is  not  necessary  to  allege  the  promise  to  repay,  which 
the  law  implies  from  defendant's  receiving  plaintiff's  money 
by  mistake; 94  but  if  sufficient  evidence  of  a  legal  obligation, 
or  what  the  law  regards  as  a  moral  obligation,95  has  been 
given,  evidence  of  a  subsequent  promise  by  the  plaintiff  to 
refund  is  competent.96 

4.  Forged  or  Counterfeit  Paper. 

There  is  a  presumption  that  the  drawees  know  the  signa- 
ture of  the  drawer,97  and  of  the  payee 98  and  indorser,"  on 


70  S.  E.  Rep.  244;  Mills  v.  Hudgins, 
97  Ga.  417,  24  S.  E.  Rep.  146. 

94  See  Fanon  v.  Sherwood,  17 
N.  Y.  227;  Byxbie  v.  Wood,  24 
Id.  607;  Steamship  Co.  v.  Jolliffe, 
2  Wall.  457. 

The  right  to  recover  money  paid 
by  mistake  is  in  no  manner  de- 
pendent upon  an  express  admis- 
sion by  the  party  receiving  it, 
or  on  his  agreement  to  refund; 
the  allegation  of  such  admission 
and  promise  in  plaintiff's  petition 
is  unnecessary  to  a  statement  of  a 
cause  of  action,  and  he  will  not  be 


required  to  sustain  it  by  evidence. 
Fidelity  Savings  Bk.  v.  Reeder, 
142  Iowa,  373,  120  N.  W.  Rep. 
1029;  Russo-Chinese  Bank  v.  Na- 
tional Bk.  of  Commerce,  109  Cir. 
Ct.  App.  398,  187  Fed.  Rep.  80. 

78  See  chapter  XIII,  paragraph 
4,  of  this  vol. 

"Bentley  v.  Morse,  14  Johns. 
468;  Rosboro  v.  Peck,  48  Barb. 
92;  Ege  v.  Koontz,  3  Penn.  St.  109. 

"National  Park  Bank  v.  Ninth 
Nat.  Bank,  46  N.  Y.  77. 

"The  law  is  well  settled  that 
a  bank  is  conclusively  presumed 


98  Graves  v.  Am.  Exchange  Bank, 
17  N.  Y.  205. 

Where  an  agent  of  the  payee  of 
a  check  indorsed  the  payee's  sig- 
nature thereon,  though  not  au- 
thorized to  do  so,  it  was  held  that 
the  unauthorized  payment  and 
subsequent  charge  to  the  account 
of  the  drawer  was  a  sufficient  basis 
for  a  liability  of  the  bank  to  the 
payee.  McFadden  v.  Follrath, 
114  Minn.  85,  89,  130  N.  W.  Rep. 
542,  37  L.  R.  A.  N.  S.  201.  See 
also  Burstein  v.  People's  Trust  Co., 


143  N.  Y.  App.  Div.  165,  127 
N.  Y.  Supp.  1092. 

Where  the  payee's  indorsement 
was  forged,  it  was  held  that  the 
bank  rather  than  the  drawer,  had 
the  opportunity  of  ascertaining 
whether  or  not  an  indorsement  was 
genuine,  and  if  it  did  not  do  so 
before  making  the  payment,  the 
loss  fell  upon  the  bank.  Kearny  v . 
Met.  Trust.  Co.,  110  N.  Y.  App. 
Div.  236,  97  N.  Y.  Supp.  274,  276. 

"Morgan  v.  Bank  of  State  of 
X.  Y.,  11  N.  Y.  404.  But  as  to 


722 


ACTIONS    FOR   FORGED    OR   COUNTERFEIT   PAPER 


whose  supposed  signatures  they  pay,  which  is  conclusive  in 
favor  of  the  drawer  against  their  allegation  of  mistake;  but 
there  is  no  such  presumption  as  to  the  genuineness  of  the 
writing  in  the  body  of  the  paper.1  In  an  action  to  recover 
the  value  of  bad  money  received  by  plaintiff  from  defendant 
in  payment  of  a  debt,  or  for  other  consideration,  the  burden 


and  bound  to  know  the  signature 
of  its  customer,  when  that  signa- 
ture appears  as  drawer  on  a  check, 
drawn  upon  that  bank,  purporting 
to  be  signed  by  the  customer." 
Missouri  Lincoln  Trust  Co.  v. 
St.  Louis  Third  Nat.  Bank,  154 
Mo.  App.  89,  100,  133  S.  W.  Rep. 
357. 

There  is  an  implied  obligation 
upon  a  bank  to  pay  out  a  deposi- 
tor's money  only  upon  the  latter's 
order.  Consequently  payments 
upon  forged  orders  afforded  no 
protection  to  the  bank.  In  the  eye 
of  the  law,  as  to  the  depositor,  a 
forged  check  paid  is  not  paid. 
Parker-Smith  v.  Prince  Mfg.  Co., 
172  App.  Div.  302,  158  N.  Y. 
Supp.  346. 

When  the  amount  of  a  check  was 
raised,  it  was  held  that  the  drawee 
of  the  check  could  only  be  held  to 
a  knowledge  of  the  signature  of  the 
drawer.  By  accepting  and  paying 
the  check,  it  only  vouched  for 
the  genuineness  of  the  signature. 
Oppenheim  v.  West  Side  Bank, 


22  Misc.  722,  50  N.  Y.  Supp.  148. 

The  drawee  bank  is  conclusively 
presumed  to  know  the  signatures 
of  its  depositors.  Marshalltown 
First  Nat.  Bank  v.  Marshalltown 
State  Bank,  107  Iowa,  327,  77 
N.  W.  Rep.  1045, 44  L.  R.  A.  131. 

1  Bank  of  Commerce  v.  Union 
Bank,  3  N.  Y.  230. 

By  accepting  and  paying  a  check, 
a  bank  vouched  for  the  genuineness 
of  the  signature,  but  could  not  be 
held  to  a  knowledge  of  want  of 
genuineness  of  any  other  part 
thereof.  Oppenheim  v.  West  Side 
Bank,  22  Misc.  722,  50  N.  Y. 
Supp.  148. 

Where  the  plaintiff  allowed  his 
check  to  be  made  out  in  such  a 
careless  manner  that  it  could  be 
easily  raised,  it  was  held  that  the 
drawee  bank  paying  the  raised 
check  was  entitled  to  charge  the 
amount  so  paid  to  the  plaintiff,  de- 
positor. Otis  Elevator  Co.  v.  San 
Francisco  First  Nat.  Bank,  163 
Cal.  31,  124  Pac.  Rep.  704,  41  L. 
R.  A.  N.  S.  529. 


indorsers  other  than  the  payee, 
see  Holt  v.  Ross,  54  N.  Y.  472, 
affi'g  59  Barb.  554. 

"The  defendant  bank  could 
acquire  no  title  to  the  check,  nor 
right  to  collect  it,  through  forgery 
of  the  indorsement  of  one  of  the 


owners  in  the  chain  of  title,  and, 
having  collected  the  proceeds,  it 
may  not  retain  the  money  against 
the  true  owner."  Wolfin  v.  Se- 
curity Bank  of  New  York,  170 
App.  Div.  519,  156  N.  Y.  Supp. 
474. 


ACTIONS    FOR   MONEY    PAID    UNDER   DURESS,    ETC.       723 


is  on  the  plaintiff  to  prove  the  money  bad.2  In  an  action  on 
a  receipt  for  bills,  to  be  accounted  for  if  good,  parol  evidence 
is  competent  to  show  that  defendant  promised  to  take  the 
money  and  try  it,  and  return  it  if  condemned;  and  this,  with 
evidence  of  sufficient  lapse  of  time,3  throws  on  defendant  the 
burden  of  accounting.4 

5.  Duress.5 

To  recover  back  money  paid  under  duress,  it  is  not  es- 
sential to  allege  and  prove  a  contract.6  The  mere  fear  of 
legal  process,7  or  threats  of  prosecution  without  threats  of 


*Atwood  v.  Cornwall,  25  Mich. 
142.  Compare  Burrill  v.  Water- 
town,  etc.,  Co.,  51  Barb.  105. 

3  Marcum    v.    Beirne,    6    J.    J. 
Marsh.  (Ky.)  604. 

4  As    to    appropriate    evidence 
on    question    of    genuineness,   see 
chapter    on    BILLS,    NOTES    AND 
CHECKS. 

5  For  conflicting    definitions    of 
duress,    coercion,    and    exaction, 
see  7  WaU.  214,   10  Id.  414,  14 
Id.    332;    Peyser  v.    Mayor,   etc., 
of  X.  Y.,  70  N.  Y.  497;  Meyer  v. 
Clark,  45  N.  Y.  284,  rev'g  2  Daly, 
497;  Am.  Exch.  Fire  Ins.  Co.  v. 
Britton,  8  Bosw.  148. 

6  Carew  v.  Rutherford,  106  Mass. 
1,  s.  c.,  8  Am.  Rep.  287,  and  cases 
cited. 

If  the  payment  was  purely  vol- 
untary, with  no  element  of  duress 
of  any  sort,  there  can  be  no  re- 
covery. Selby  v.  United  States, 
47  Fed.  Rep.  800. 

It  is  not  enough  to  allege  that  a 
payment  was  made  under  duress; 
the  facts  constituting  the  duress 
or  compulsion  must  be  pleaded. 
Minneapolis  Stock- Yards,  etc.,  Co. 


v.  Cunningham,  59  Minn.  325, 
61  N.  W.  Rep.  329. 

To  constitute  duress  there  must 
be  some  actual  or  threatened  exer- 
cise of  power  possessed  or  believed 
to  be  possessed  by  the  party  ex- 
acting or  receiving  the  payment 
over  the  person  or  property  of  an- 
other, from  which  the  latter  has 
no  immediate  relief  than  by  mak- 
ing the  payment.  Williams  v. 
Rutherfurd  Realty  Co.,  159  N.  Y. 
App.  Div.  171,  144  N.  Y.  Supp. 
357. 

7  Quincy  v.  White,  63  N.  Y.  370, 
rev'g  5  Daly,  327. 

Even  though  a  claim  be  unjust 
or  illegal,  if  it  is  paid  merely  in  fear 
of  a  threatened  suit,  the  money 
cannot  be  recovered.  Weber  v. 
Kirkendall,  44  Neb.  766,  63  N.  W. 
Rep.  35;  Laredo  v.  Loury,  20  S.  W. 
Rep.  (Tex.  Ct.  of  App.)  89;  Flack 
v.  National  Bk.  of  Commerce,  8 
Utah,  193,  30  Pac.  Rep.  746,  17 
I,.  R.  A.  583;  Hanford  Gas,  etc., 
Co.  v.  City  of  Hanford,  163  Cal. 
108,  124  Pac.  Rep.  727. 

A  threat  by  a  creditor  that  he 
will  sue  his  prima  facie  debtor 


724      ACTIONS   FOR   MONEY   PAID    UNDER   DURESS,    ETC. 


imprisonment  or  arrest,  are  not  sufficient.8  As  against  a 
party  to  legal  process,  who  by  fraudulent  or  improper  use  of 
it,  knowing  that  he  has  no  just  claim,  compelled  plaintiff  to 
pay  a  demand,  neither  evidence  of  protest,9  nor  of  the  final 


unless  the  debt  is  paid  will  not 
sustain  an  action  for  money  paid 
under  duress.  Holt  v.  Thomas, 
105  Cal.  273,  38  Pac.  Rep.  891. 

Where  the  plaintiff  pays  more  than 
the  full  amount  due  on  a  mortgage 
in  order  to  terminate  a  pending 
foreclosure,  he  cannot  recover  the 
excess  paid  on  the  ground  of  duress. 
Vereycken  v.  Vanden  Brooks,  102 
Mich.  119,  60  N.  W.  Rep.  687. 

The  mere  fact  that  there  was  an 
action  pending  against  the  plain- 
tiff, which  he  voluntarily  settled, 
is  not  sufficient  to  prove  that  he 
paid  the  money  under  duress. 
Teem  v.  Ellijay,  89  Ga.  154,  15 
S.  E.  Rep.  33. 

Where  execution  is  issued  against 
A  and  levied  on  property  of  B, 
who  pays  the  money,  he  cannot 
recover  on  the  ground  of  duress. 
His  remedy  was  to  obtain  an  in- 
junction instead  of  voluntarily 
making  the  payment.  Stover  v. 
Mitchell,  45  111.  213. 

8  Harmon  v.  Harmon,  61  Me. 
227,  s.  c.,  14  Am.  Rep.  556. 

It  has  been  held,  however,  that 
where  on  the  defendant's  threat  to 
foreclose  a  mortgage  on  the  plain- 
tiff's property,  the  latter  agreed 
to  pay  monthly  sums  which  were 
found  by  the  court  to  be  uncon- 
scionable, an  action  to  recover  the 
money  so  paid  could  be  maintained. 
Either  v.  Packard,  115  Me.  306, 
98  Atl.  Rep.  929. 

In   Helmick  v.  Carter,   171    111. 


App.  25,  it  was  held  that  a  pay- 
ment made  under  a  threat  of  fore- 
closing a  mortgage  which  had  be- 
come due  was  not  made  under 
duress.  See  also  Holt  r.  Thomas, 
105  Cal.  273,  38  Pac.  Rep.  891; 
Burke  v.  Gould,  105  Cal.  277,  38 
Pac.  Rep.  733.  Nor  did  a  threat 
of  attachment  in  a  civil  suit  con- 
stitute duress.  Paulson  v.  Barger, 
132  Iowa,  547,  109  N.  W.  Rep. 
1081.  Threats  of  criminal  prose- 
cution without  the  issuance  of  a 
warrant  are  insufficient  to  consti- 
tute duress.  Patoka  Loan,  etc., 
Ass'n  i'.  Holland,  63  111.  App.  58. 

But  where  the  plaintiff  showed 
that  he  had  paid  money  and 
given  his  note  because  of  threats 
of  exposure,  arrest  and  criminal 
prosecution,  on  untrue  charges  of 
false  measurements  and  dishonesty, 
it  was  held  that  he  had  made 
out  a  prima  facie  case  for  the  re- 
covery of  money  paid  under  duress. 
And  though  no  threats  were  made 
when  he  subsequently  paid  his 
note,  he  did  not  thereby  waive 
the  duress  since  he  had  every  reason 
to  believe  that  the  same  danger 
to  his  business  and  to  his  personal 
liberty  existed  as  when  the  threats 
were  ^  made.  Knee  v.  Yankee 
Waist  Co.,  167  App.  Div.  753,  153 
N.  Y.  Supp.  56. 

9  Meek  fl.lVfcClure,  49  Cal.  624, 
s.  P.,  McKee  v.  Campbell,  27  Mich. 
497. 

Where,  in  order  to  get  a  con- 


ACTIONS    FOR   MONEY    PAID    UNDER   DURESS,    ETC.        725 

termination  of  the  process,10  is  necessary.  Evidence  that  a 
judgment  has  been  reversed  after  the  money  has  been  col- 
lected under  it,  and  that  the  action  was  subsequently  finally 
dismissed,  makes  a  prima  facie  case  in  favor  of  the  defendant 
in  the  judgment  n  to  recover  back  the  money;  and  the 
burden  of  proving  an  equitable  right  to  retain  it  is  cast 
on  the  adverse  party.12  One  who  sues  to  recover  back  what 
he  paid  to  get  possession  of  his  goods  withheld  on  an  unjust 
claim  of  lien  thereon,13  has  the  burden  of  showing  that  the 
claim  of  lien  was  unfounded.14  So  hi  an  action  against  the 


signment  of  goods,  the  consignees 
were  compelled  to  make  payments 
in  excess  of  lawful  rates,  it  was  held 
that  this  excess  money  paid  under 
compulsion  could  be  recovered, 
even  in  the  absence  of  protest  at 
the  time  of  payment.  So.  Pac.  Co. 
v.  California  Adjustment  Co.,  237 
Fed.  Rep.  954, 962, 150  C.C.  A.604. 

10  Chandler  v.  Sanger,  114  Mass. 
364,  s.  c.,  19  Am.  R.  367.    Compare 
Moulton  v.  Beecher,  1  Abb.  N.  C. 
193. 

11  But  not  in  favor  of  his  surety 
who  was   not  a  party.     Garr  v. 
Martin,  20  N.  Y.  306,  rev'g  1  Hilt. 
358. 

Where  a  judgment  which  has 
been  paid  is  subsequently  reversed, 
the  payment  will  be  deemed  to 
have  been  voluntary  and  not  re- 
coverable. Ditman  v.  Raule,  134 
Pa.  480,  19  Atl.  Rep.  676. 

When  payment  has  been  coerced 
on  a  judgment  which  is  afterwards 
reversed,  the  party  paying  has, 
prima  facie,  a  right  to  restitution 
of  the  money.  Florence  Cotton, 
etc.,  Co.  v.  Louisville  Banking  Co., 
138  Ala.  588,  36  S.  Rep.  456,  100 
Am.  St.  Rep.  50. 


12  Crocker  v.  Clement,  23  Ala. 
296,  307. 

It  has  been  held  that  where  one 
dismissed  his  suit  after  a  judgment 
in  his  favor  had  been  reversed, 
he  could  not,  in  a  subsequent  ac- 
tion against  him  to  recover  money 
paid  upon  the  reversed  judgment, 
offer  as  a  defense  thereto  the  fact 
that  the  claim  upon  which  he 
originally  brought  suit  was  unpaid. 
Florence  Cotton,  etc.,  Co.  v.  Louis- 
ville Banking  Co.,  138  Ala.  588, 
36  S.  Rep.  456,  100  Am.  St.  Rep. 

50. 

/  \ 

13  Harmony  v.  Bingham,  12  N. 
Y.  99,  affi'g  1  Duer,  209;  and  see 
Great  Western  Ry.  Co.  v.  Sutton, 
L.  R.  4  H.  pf  L.  Cas.  226,  249. 

Money,  in  excess  of  the  legal 
rate,  when  paid  to  a  common  car- 
rier to  secure  the  release  of  goods 
in  the  carrier's  possession,  was  held 
to  have  been  paid  under  duress 
and  to  be  recoverable  in  an  action 
for  money  had  and  received. 
Clough  v.  Boston,  etc.,  R.  Co., 
77  N.  H.  222, 90  Atl.  Rep.  863. 

14  Briggs  v.  Boyd,  56  N.  Y.  289, 
affi'g  65  Barb.  197. 

The   burden   of   proving  duress 


726   ACTIONS  FOR  MONEY  PAID  UNDER  DURESS,  ETC. 

collector,  for  duties  alleged  to  have  been  illegally  exacted, 
the  burden  of  proof  is  on  plaintiff  to  show  not  merely  exac- 
tion, but  that  it  was  excessive  and  illegal ;  unless  it  be  shown 
that  he  had  no  authority  in  the  premises,  and  could  hold  the 
goods  for  no  amount  whatever.  On  an  issue  as  to  the  amount 
of  duty,  the  burden  of  proof  of  illegal  amount  rests  on  plain- 
tiff.15 If  an  officer  had  no  notice  of  the  facts  which  rendered 
his  demand  illegal,  proof  of  protest  at  the  time  of  payment  is 
necessary ; 16  otherwise  not, n  unless  required  by  statute. 18  In 
cases  of  personal  duress,  when  the  state  of  mind  of  the  person 
at  the  tune  is  relevant,  to  show  weakness  (in  connection 
with  which  defendant's  pressure,  though  perhaps  not  tech- 
nically amounting  to  duress,  is  fraudulent,  and  therefore 
equivalent  hi  effect),  the  plaintiffs  own  acts  and  declarations, 
as  well  as  those  constituting  the  alleged  duress,  are  com- 
petent, within  the  limits  already  stated  in  regard  to  proof 
of  mental  weakness  and  undue  influence.19  But  the  opinion 
of  a  witness,  as  to  whether  language  used  was  calculated  to 

is  on  the  plaintiff .    Buck  v.  Hough-  118.     Except  for  purpose  of  re- 

taling,  110  N.  Y.  App.  Div.  52,  96  covering  interest.    Id. 

N.  Y.  Supp.  1034.  « See  36  L.  N.  S.  476,  notes. 

"Arthur  v.   Unkart,  96  U.   S.  As  to  the  requisite  distinctness  of 

(6  Otto)  118,  122.  protest,  compare  Curtis'  Adminis- 

Where  plaintiff  claims  that  he  tratrix  v.   Fiedler,  2  Black,  461; 

made  the  payment  under  duress',  Davies  v.  Arthur,  96  U.  S.  (6  Otto) 

the  burden  of  proving  that  he  sub-  148. 

sequently  ratified  the  transaction  "See  chapter  on  WILLS.    Blair 

is   on   the   defendant.     Brown   v.  v.    Coffman,    2    Overt.     (Tenn.) 

Worthington,  162  Mo*  App.  508,  176. 

142  S.  W.  Rep.  1082.  Where  the  money  was  paid  to 

16  Meek    v.    McClure,    49    Cal.  recover    certain    property,    it    is 
624.  competent    to   show   the    circum- 

The  party  paying  an  illegal  de-  stances  which  made  it  important 

mand  need  not  specify  the  grounds  and   necessary   that   the    plaintiff 

of  illegality  in  the  .protest  accom-  should  have  possession  of  his  prop- 

panying  the  payment.     Whitford  erty,  as  tending  to  show  that  the 

v.  Clark,   33   R.   I.   331,   80  Atl.  money    was    paid    under    duress. 

Rep.  257,  36  L.  R.  A.  N.  S.  476,  Fargusson  v.   Winslow,  34  Minn. 

Ann.  Gas.  1913,  D.  564.  384,  25  N.  W.  Rep.  942. 

17  Id.;  Atwell  v.  Zeluff,  26  Mich. 


ACTIONS  FOR  MONEY  PAID  UNDER  FRAUD,  ETC.   727 


induce  one  to  act  through  fear,  is  not  competent;  the  lan- 
guage itself  must  be  given.20 

6.  Fraud. 

The  fact  that  the  complaint  states  fraudulent  representa- 
tions of  the  defendant,  by  which  the  plaintiff  was  induced 
to  pay  him  the  money  which  he  seeks  to  recover  back,  does 
not  necessarily  stamp  the  action  as  in  tort.  It  is  no  objection 
to  a  recovery  in  such  a  case  that  fraud  is  not  proved,21 
if  sufficient  facts  appear  to  warrant  a  recovery  as  for  money 
had  and  received;  especially  when  the  words  in  the  complaint 
charging  fraud  may  be  regarded  as  matter  of  inducement. 
Having  money  that  rightfully  belongs  to  another,  creates  a 
debt;  wherever  a  debt  exists  without  an  express  promise 
to  pay,  the  law  implies  a  promise,  and  the  action  sounds  in 
contract,  although,  under  the  Code,  this  implied  promise 
need  not  be  alleged.22  But  if  fraud  is  alleged  as  the  cause  of 


w  Johnson  v.  Ballew,  2  Port. 
(Ala.)  29. 

21  The  New  York  Code  Civ.  Pro., 
§  549,  now  requires  proof  of  fraud 
if  alleged. 

Even  though  no  fraud  be  al- 
leged, if  the  statements  upon  which 
the  plaintiff  relied  when  he  paid 
the  money  are  proved  to  have  been 
untrue,  he  can  recover.  Ely  v. 
Padden,  13  N.  Y.  State  Rep.  53. 

Where  a  surety  settles  a  claim 
for  less  than  its  face  amount,  and 
then  falsely  represents  to  the  plain- 
tiff that  it  has  paid  the  full  amount, 
the  plaintiff  can  recover  the  excess 
paid  by  him  to  the  surety  relying 
upon  its  representations.  Price  v. 
Horton,  4  Tex.  Civ.  App.  526,  23 
S.  W.  Rep.  501. 

«  Byxbie  v.  Wood,  24  N.  Y.  607, 
affi'g  Sheldon  v.  Wood,  2  Bosw. 
267;  compare  Knapp  v.  Meigs,  11 


Abb.  Pr.  N.  S.  405,  and  paragraphs 
1  and  2,  and  note,  of  chapter  XV, 
of  this  vol. 

"It  is  elementary  law  that  when 
one  person  has  in  his  possession 
money  which  in  equity  and  good 
conscience  belongs  to  another,  the 
law  will  create  an  implied  promise 
upon  the  part  of  such  person  to 
pay  the  same  to  him  to  whom  it 
belongs,  and  in  such  cases  an  ac- 
tion for  money  had  and  received 
may  be  maintained.  ...  It  lies 
for  the  money  paid  under  protest, 
or  obtained  through  fraud,  duress, 
extortion,  imposition,  or  any  other 
taking  of  undue  advantage  of  the 
plaintiff's  situation,  or  otherwise 
involuntarily  and  wrongfully  paid." 
Either  v.  Packard,  115  Me.  306, 
98  Atl.  Rep.  929. 

"Formerly  it  was  essential,  in  a 
count  for  money  had  and  received, 


728   ACTIONS  FOR  MONEY  PAID  UNDER  FRAUD,  ETC. 

action,  so  that  defendant  would  be  liable  to  arrest  on  a  judg- 
ment against  him,  plaintiff  cannot  recover  on  establishing  a 
contract,  express  or  implied,  without  proving  the  fraud.23 
Proof  of  a  mistake  is  not  enough  to  sustain  an  allegation 
of  a  cause  of  action  thus  founded  on  fraud.24  The  burden 
of  proof  is  of  course  on  the  plaintiff  to  prove  the  fraud  by 
which  the  payment  was  induced.25  The  principles  regulat- 
ing the  mode  of  proof  of  fraud  are  the  same  as  those  else- 
where stated  of  actions  for  deceit. 


to  employ  the  fiction  of  a  promise, 
but  this  is  no  longer  required  under 
the  code.  The  facts  should  now  be 
stated  out  of  which  the  cause  of 
action  arose,  and  the  law  will  im- 
ply the  promise."  Waite  v.  Willis, 
42  Or.  288,  70  Pac.  Rep.  1034. 

23  The  release  of  a  precedent  debt 
is  not  enough  under  an  allegation 
of    money    payment    induced    by 
fraud.    De  Grau  v.  Elmore,  50  N. 
Y.  1. 

Where  a  complaint  alleged  that 
the  defendant  had  received  money 
in  a  fiduciary  capacity  which  he 
fraudulently  appropriated  to  his 
own  use,  it  was  held  that  the  pur- 
pose of  the  allegations  was  to  en- 
able the  plaintiffs  to  cause  the  de- 
fendant's arrest  and,  therefore, 
though  the  prayer  indicated  an  ac- 
tion ex  contractu,  the  allegations  in 
tort  could  not  be  treated  as  surplus- 
age. Frick  v.  Freudenthal,  45  Misc. 
348,  90  N.  Y.  Supp.  344. 

24  Dudley  v.  Scranton,  57  N.  Y. 
424,  and  cases  cited. 

The  action  will  lie  for  a  mistake 
which  was  induced  by  fraud.  Bull 
v.  Quincy,  52  111.  App.  186. 


Where  the  defendant  was  con- 
senting to  and  desiring  the  de- 
bauchery of  his  wife,  and  both  were 
confederating  together  to  entrap 
the  plaintiff  into  the  commission 
of  acts  of  adultery  with  the  wife 
for  the  purpose  of  enabling  the  de- 
fendant to  demand  and  extort 
money  from  the  plaintiff,  the 
plaintiff  not  having  had  any  know- 
ledge of  the  conspiracy,  may  re- 
cover the  money  extorted.  Tuller 
v.  Fox,  46  111.  App.  97. 

26  Mutual  Life  Ins.  Co.  v.  Wager, 
27  Barb.  354. 

The  plaintiff  who  bases  his  ac- 
tion on  fraudulent  representations 
has  the  burden  of  proving  the  rep- 
resentations and  that  they  were 
false.  Devereux  v.  Peterson,  126 
Wis.  558,  106  N.  W.  Rep.  249; 
Johnson  v.  Mann,  72  Wash.  651, 
131  Pac.  Rep.  213. 

The  burden  of  proof  is  on  the 
defendant  to  show  that  th,e  plain- 
tiff with  full  knowledge  of  all  the 
facts  ratified  the  agreement  under 
which  the  payment  was  made. 
Schoellhamer  v.  Rometsch,  26  Ore. 
394,  38  Pac.  Rep.  344. 


ACTIONS   UNDER   FAILURE    OF    CONSIDERATION  729 

7.  Failure  of  Consideration.26 

Where  plaintiff  sues  to  recover  back  money  paid  by  him 
to  defendant  under  a  contract  the  consideration  of  which 
has  failed,  the  principles  applicable  to  actions  on  such  con- 
tracts apply  as  to  the  mode  of  proof,  except  that  the  burden 
is  on  the  plaintiff  to  prove  nonperformance  by  defendant, 
or  other  failure  of  consideration.27  If  the  contract  was  in 
writing  it  should  be  produced  or  accounted  for.28  If  it  con- 
tains a  covenant  to  repay  and  is  under  seal,  the  action  should 
be  upon  the  covenant;  M  though  under  the  new  procedure, 
if  the  complaint  shows  a  good  cause  of  action  for  money 
paid,  the  allegation  of  the  contract  may  be  regarded  as 
matter  of  inducement,  and  is  properly  pleaded  for  that  pur- 
pose.30 Evidence  that  plaintiff  delivered  his  money  to  de- 
fendant upon  conditions  stated  by  him  at  the  tune,  and  that 
defendant  received  it  in  silence,  is  prima  fade  evidence  of 
assent  to  the  conditions.31  An  order  drawn  by  defendant  in 
favor  of  plaintiff,  and  delivered  to  him,  and  proved  to  have 
been  subsequently  countermanded  by  defendant,  is  com- 
petent without  evidence  of  presentment  to  the  drawee; 
and  if  expressed  to  be  for  value  received,  is  prima  fade  evi- 
dence of  the  receipt  by  defendant  of  its  amount  from  plain- 
tiff.32 

28  As  to  the  test  of  the  right  to  M  Allen   v.    Potter,    2    McCord, 

recover  back  money  paid  under  an  323. 

illegal   contract   see   Knowlton   v.  M  Miller  v.  Watson,  5  Cow.  195. 

Congress  Spring  Co.,  57  N.  Y.  518;  30Eno  v.  Woodworth,  4  N.  Y. 

opposed  in  a  further  decision  in  5  (4  Comst.)  249. 

Reporter,  166,  s.  c.,  16  Alb.  L.  J.  "Hale    v.    Holden,    116    Mass. 

10.  172. 

27  Wheeler  ».  Board,   12  Johns.  "Child    v.    Moore,    6    N.    H. 

363.  33. 


CHAPTER  XV 


ACTIONS    FOR    MONEY    RECEIVED    BY    DEFENDANT    TO 
PLAINTIFF'S   USE 


1.  Grounds  of  action. 

2.  The  pleadings. 

3.  Plaintiff's  title  to  the  fund. 

4.  Receipt   of   the  money  by  de- 

fendant. 

5.  — by  an  agent  of  defendant. 

6.  The    medium    and    amount  of 

payment. 


7.  Action    by    depositor    against 

bank. 

8.  Bank's  action  for  overdraft. 

9.  Action  by  principal  against  his 

agent. 

10.  Demand  and  notice. 

11.  Defendant's  evidence. 


1.  Grounds  of  Action. 

The  ground  of  the  action  is  that  defendant,  or  his  agent, 
has  received  money,  or  property  which  plaintiff  is  entitled 
to  charge  him  with  as  money,  which  belongs  of  right  to 
plaintiff,  and  which  defendant  ought  to  pay  over  to  him.33 


33  The  principles  on  which  this 
action  is  sustained  are  liberal,  ap- 
plying to  almost  every  case  where  a 
person  has  received  money  which 
in  equity  and  good  conscience  he 
ought  to  refund;  and,  upon  the 
same  principles,  the  defendant  may 
avail  himself  of  any  considerations, 
equitable  as  well  as  legal,  which 
show  that  the  plaintiff,  in  fairness 
and  justice,  is  not  entitled  to  the 
whole  of  his  demand,  or  any  part 
of  it.  BLACKSTONE,  J.,  MANS- 
FIELD, J.,  NELSON,  J.,  Eddy  v. 
Smith,  13  Wend.  490,  and  cases 
cited,  s.  P.,  Cope  v.  Wheeler,  41 
X.  Y.  303,  affi'g  53  Barb.  350,  s.  c., 
37  How.  Pr.  181.  Strictly  speak- 
ing, evidence  that  plaintiff  paid 
730 


money  to  a  third  person  for  de- 
fendant's use  (Claycomb  v.  McCoy, 
48  111.  110);  or  in  consequence  of 
his  fraud  (Butler  v.  Livermore,  52 
Barb.  570);  or  to  defendant  under 
a  contract  which  has  failed  (Briggs 
v.  Vanderbilt,  19  Barb.  222);  is 
not  appropriate  under  a  mere  alle- 
gation of  money  had  and  received 
by  defendant  to  plaintiff's  use. 
See  chapter  XIV  of  this  vol.  But 
under  the  new  procedure,  the 
question  is  usually  one  of  variance, 
not  of  entire  failure  of  proof.  But 
see  N.  Y.  Indemnity  Co.  v .  Gleason, 
7  Abb.  N.  Cas.  334. 

"The  action  for  money  had  and 
received  for  the  use  of  the  plain- 
tiff is  an  equitable  action  and  lies 


ACTIONS    FOR   MONEY   RECEIVED,    ETC. 


731 


2.  The  Pleadings. 

The  complaint,  unless  on  an  account,34  must  usually  be 


for  money  had  and  received  by  the 
defendant,  which  in  equity  and 
good  conscience  he  should  not  re- 
tain, but  should  pay  to  the  plain- 
tiff. .  .  .  The  law  in  such  cases 
implies  a  promise  to  pay,  although 
there  is  no  privity  between  the 
parties."  Schoden  v.  Schaefer, 
184  111.  App.  456. 

"When  one  person  has  in  his 
possession  money  which  in  equity 
and  good  conscience  l)elongs  to  an- 
other, the  law  will  create  an  im- 
plied promise  upon  the  part  of 
such  person  to  pay  the  same  to 
him  to  whom  it  belongs,  and  in 
such  cases  an  action  for  money 
had  and  received  may  be  main- 
tamed."  Mayo  r.  Purington,  113 
Me.  452,  94  Atl.  Rep.  935. 

Plaintiff's  right  to  recover  in  an 
action  for  money  received  must  be 
determined  on  principles  which 
govern  courts  of  equity.  Seward 
v.  Tasker,  143  N.  Y.  Supp.  257; 
Henderson  v.  Koenig,  192  Mo. 
690,  91  S.  W.  Rep.  88. 

The  action  will  lie  when  money 
had  been  received  which  in  justice 
belongs  to  another  and  which 
ought  to  be  returned.  Estate  of 
Stepan,  178  111.  App.  227. 

The  action  is  equitable  in  char-* 
acter.  Any  evidence  showing  that 
the  defendant  has  money  which  he 
ought  to  pay  to  the  plaintiff  will 
sustain  the  action.  Edwards  v. 
Mt.  Hood  Const.  Co.,  64  Ore.  308, 
130  Pac.  Rep.  49. 

An  action  for  money  had  and 
received  is  founded  upon  equitable 


principles.  No  privity  of  contract 
between  the  parties  is  required  ex- 
cept that  which  results  from  cir- 
cumstances showing  an  equitable 
obligation.  Commercial  Nat.  Bk. 
T.  Sloman,  121  N.  Y.  App.  Div. 
874,  106  N.  Y.  Supp.  508;  Roberts 
v.  Ely,  113  N.  Y.  128,  20  N.  E. 
Rep.  606. 

The  action  will  lie  if  the  defend- 
ant has  received  money,  the  prop- 
erty of  the  plaintiff,  under  such 
circumstances  as  to  be  obliged  by 
natural  justice,  good  conscience, 
right,  and  equity  to  refund.  Brad- 
ley Lumber  Co.  v.  Bradley  County 
Bk.,  124  Cir.  Ct.  App.  175,  206 
Fed.  Rep.  41;  Copper  Belle  Mining 
Co.  v.  Gleeson,  14  Ariz.  548,  134 
Pac.  Rep.  285,  48  L.  R.  A.  N.  S. 
481;  Smith  v.  Farmers',  etc.,  Bk., 
2  Cal.  App.  377,  84  Pac.  Rep.  348; 
Humbird  v.  Davis,  210  Pa.  311,  59 
Atl.  Rep.  1082. 

The  law  implies  a  promise  to  re- 
pay on  demand  money  which  be- 
longs to  another.  Arkansas  Natl. 
Bk.  v.  Martin,  110  Ark.  578,  163 
S.  W.  Rep.  795. 

Unless  it  appears  that  the  money 
ought  to  be  repaid  the  law  will 
not  imply  a  promise  to  repay.  Gile 
v.  Interstate  Motor  Car  Co.,  27 
N.  D.  108,  145  N.  W.  Rep.  732, 
L.  R.  A.  1915,  B.  109. 

34  Allen  v.  Patterson,  7  N.  Y. 
476. 

The  complaint  need  not  allege 
every  fact  upon  which  the  cause 
of  action  is  based;  the  defendant 
can  demand  a  bill  of  particulars. 


732 


ACTIONS   FOR   MONEY   RECEIVED   BY 


special,  setting  forth  the  relation  of  the  parties  and  the  con- 
tract or  wrong  by  means  of  which  the  money  was  received. 
If  the  facts  alleged  constitute  a  tort,  such  as  a  conversion 
or  deceit  in  obtaining  credit,  or  a  breach  of  trust,  it  does 
not  necessarily  make  the  action  one  of  tort.  If  a  wrong  is 
alleged  merely  as  matter  of  inducement,35  or  if  it  be,  al- 
though hi  form  stated  as  the  gist  of  the  action,  a  mere  legal 
conclusion,  and  unsupported  by  the  facts  alleged,36  evidence 


Downing  v.  Mulcahy,  6  Cal.  Un- 
rep.  Gas.  242,  56  Pac.  Rep.  466. 

If  the  complaint  alleges  that  the 
defendant  has  received  money  to 
the  use  of  the  plaintiff  it  is  not  nec- 
essary to  allege  a  demand  for  the 
money.  Field  v.  Brown,  146  Ind. 
293,  45  N.  E.  Rep.  464;  Waite  v. 
Willis,  42  Ore.  288,  70  Pac.  Rep. 
1034. 

The  relation  of  the  parties  out 
of  which  the  duty  to  account  arises 
must  be  alleged.  Biddle  v.  Boyce, 
13  Mo.  532. 

There  need  not  be  any  relation 
of  the  parties  nor  any  promise 
to  repay.  The  gist  of  the  action  is 
that  the  defendant  has  in  his  pos- 
session money  belonging  to  the 
plaintiff.  Beardslee  v.  Horton,  3 
Mich.  560. 

The  petition  must  set  forth  the 
relation  of  the  parties  and  the 
/agreement  or  wrong  which  gave 
rise  to  the  cause  of  action,  it  not 
being  an  action  on  an  account.  St. 
Louis  Sanitary  Co.  v.  Reed,  179 
Mo.  App.  164,  161  S.  W.  Rep. 
315. 

While  under  the  California  Code 
a  complaint  for  money  had  and  re- 
ceived should  consist  of  a  state- 
ment of  facts  upon  which  the  cause 
of  action  is  based,  it  is  not  neces- 


sary to  allege  directly  that  the  de- 
fendant received  the  money  for 
the  use  of  the  plaintiff's  assignor; 
and  in  that  case  the  defendant  is 
not  required  to  deny  the  allega- 
tions in  any  more  specific  language 
than  that  used  in  the  complaint. 
McDonald  v.  Pacific  Debenture 
Co.,  146  Cal.  667,  80  Pac.  Rep. 
1090. 

In  Maryland,  under  Code  Art. 
75,  §23,  the  words  "For  money 
payable  by  the  defendant  to  the 
plaintiff,"  must  precede  money 
counts.  Littleton  v.  Wells,  etc., 
Council,  No.  14,  J.  O.  U.  A.  M., 
98  Md.  453,  56  Atl.  Rep.  798. 

Text  quoted  in  St.  Louis  San- 
itary Co.  v.  Reed,  179  Mo.  App. 
164,  171,  161  S.  W.  Rep.  315. 

"Graves  v.  Harte,  59  N.  Y. 
162;  Byxbie  v.  Wood,  24  Id.  607, 
affi'g  2  Bosw.  267. 

Where  the  plaintiff  alleges  fraud 
he  has  the  burden  of  proving  it. 
"There  is  a  presumption  in  favor 
of  defendant's  innocence.  Early 
v.  Atchison,  etc.,  Ry.  Co.,  167 
Mo.  App.  252,  149  S.  W.  Rep. 
1170. 

36  As  where,  after  alleging  a  de- 
livery of  money  to  a  banker  or 
agent,  which  necessarily  consti- 
tutes a  mere  debt,  not  a  bailment, 


DEFENDANT   TO   PLAINTIFF'S   USE 


733 


of  the  facts  alleged  establishing  liability  on  contract,  ex- 
press or  implied,  will  sustain  the  action,37  although  the  sug- 
gestion of  fraud  be  unproved.  If,  on  the  other  hand,  fraud 
is  alleged  in  such  way  that,  on  a  judgment  against  defendant, 
he  would  be  liable  to  arrest,  the  plaintiff  cannot  recover 
without  proof  of  this  allegation.38  Plaintiff  will  not  be 
deemed  to  waive  a  tort  alleged  hi  a  manner  appropriate  to  a 
cause  of  action,  and  to  rest  on  an  implied  promise,  unless 
such  intent  appears  by  the  complaint.39  Where  the  tort 


the  pleader  alleges  that  defendant 
wrongfully  converted  the  sum  to 
his  own  use.  Greentree  v.  Rosen- 
stock,  61  N.  Y.  583,  affi'g  34  Super. 
Ct.  (J.  &  S.)  505;  Sheahan  v.  Shan- 
ahan,  5  Hun,  461,  s.  P.,  Vihnar  ». 
Schall,  61  N.  Y.  564,  affi'g  35  Super. 
Ct.  (J.  &  S.)  67. 

A  promise  to  repay,  which  the 
law  implies,  need  not  be  alleged. 
Mumford  v.  Wright,  12  Colo. 
App.  214,  55  Pac.  Rep.  744. 

37  Where  the  defendant  admits 
his  indebtedness  on  the  note  given 
in  evidence,  that  note,  though 
varying  from  the  description  given 
in  a  special  count,  is  admissible 
under  the  common  counts  as  evi- 
dence of  money  had  and  received 
by  the  defendant  to  the  plaintiff's 
use.  Hopkins  v.  Orr,  124  U.  S. 
510,4513;  Grant  v.  Vaughn,  3  Bur- 
row, 1516;  Page  v.  Bank  of  Alex- 
andria, 7  Wheat.  35;  Goodwin  v. 
Morse,  9  Met.  278. 

And  a  complaint  which  alleged 
the  collection  of  fines  and  the  re- 
tention thereof  was  held  sufficient 
to  authorize  a  recovery,  for  money 
had  and  received,  though  it  con- 
tained an  additional  allegation  of 
conversion.  Green  Island  v.  Wil- 


liams, 79  App.  Div.  260,  79  N.  Y. 
Supp.  791. 

A  complaint  which  alleged  that 
the  defendant,  an  attorney,  col- 
lected money  for  the  plaintiff, 
paid  over  part  thereof  and  re- 
tained the  balance  which  the  plain- 
tiff demanded  but  which  the  de- 
fendant refused  to  pay,  was  held 
a  sufficient  statement  of  a  cause 
of  action  for  money  had  and  re- 
ceived, irrespective  of  an  addi- 
tional allegation  of  conversion 
contained  therein.  Reed  v.  Hay- 
ward,  82  App.  Div.  416,  81  N.  Y. 
Supp.  608. 

38  Ross  v.  Mather,  51  N.  Y.  108; 
De  Grau  v.  Elmore,  50  Id.  1.    Com- 
pare Coit  v.  Stewart,  12  Abb.  Pr. 
N.  S.  216;  Barker  v.   Clark,  Id. 
106. 

See  Frick  v.  Freudenthal,  45 
Misc.  348,  90  N.  Y.  Supp.  344. 

39  Chambers  v.  Lewis,   11  Abb. 
Pr.  210,  affi'g  10  Id.  206,  s.  c.,  2 
Hilt.  591. 

"If  money  of  the  plaintiff  has 
in  any  other  manner  come  to  the 
defendant's  hands,  for  which  he 
would  be  chargeable  in  tort,  the 
plaintiff  may  waive  the  tort  and 
bring  assumpsit  on  the  common 


734 


ACTIONS    FOR   MONEY   RECEIVED    BY 


is  not  alleged,  plaintiff  may  still  prove  it,  as  part  of  the  trans- 
action by  which  defendant  actually  received  money  which 
he  ought  to  refund  to  plaintiff — as,  for  instance,  that  defend- 
ant wrongfully  took  plaintiff's  goods,  sold  them,  and  received 
the  price.40  But  to  entitle  plaintiff  to  recover,  on  waiver  of 
tort  and  as  for  money  received,  facts  constituting  a  cause  of 
action  on  contract,  express  or  implied,  must  be  alleged; 41 


counts."  2  Greenl.  Ev.  (16th  Ed.), 
§120. 

It  is  only  where  ambiguity  as  to 
whether  a  cause  of  action  is  on  a 
contract  or  in  tort  exists  in  the 
body  of  a  complaint  that  one  can 
look  to  the  prayer  for  relief  to  de- 
termine the  pleader's  intention. 
Frick  v.  Freudenthal,  45  Misc. 
348,  90  N.  Y.  Supp.  344. 

40  Harpending  v.  Shoemaker,  37 
Barb.  270,  291,  s.  P.,  Boston,  etc., 
R.  R.  Co.  v.  Dana,  1  Gray  (Mass), 
83,  100;  Pierce  ».  Wood,  3  Fost. 
(X.  H.)  519,  531.  Where  the  evi- 
dence was  that  defendant  received 
proceeds  of  mgotiable  paper  wrong- 
fully obtained  from  plaintiff — Held 
that  the  action  should  have  been 
for  equitable  relief.  Wilson  r. 
Scott,  3  Lans.  308.  So  it  has  re- 
cently been  held  that  this  action 
by  a  municipality  is  not  sustained 
by  evidence  that  defendant  wrong- 
fully borrowed  of  a  public  officer 
money  held  by  him  as  such.  The 
action  should  be  case  or  a  bill  in 
equity.  Perley  v.  County  of  Musk- 
egon,  32  Mich.  132,  s.  c.,  20  Am. 
Rep.  637. 

Where  the  complaint  alleges  an 
actual  conversion  it  is  not  neces- 
sary to  allege  a  demand  for  repay- 
ment. Bunger  ».  Roddy,  70  Ind. 
26. 


"Walter  v.  Bennett,  16  N.  Y. 
250. 

In  an  action  for  money  had  and 
received  it  is  not  necessary  to  al- 
lege a  conversion,  as  the  action 
will  lie  without  such  allegation. 
Antonelli  v.  Basile,  93  Mo.  App. 
138;  Reed  v.  Hayward,  82  N.  Y. 
App.  Div.  416,  81  N.  Y.  Supp. 
608;  Lindskog  v.  Schouweiler, 
12  S.  D.  176,  80  N.  Y.  Rep. 
190;  Andrews  v.  Moller,  37  Hun, 
480. 

In  an  action  for  money  had  and 
received  the  plaintiff  may  waive 
all  tort  and  damages  and  claim 
only  the  money.  Law  v.  Uhr- 
laub,  104  111.  App.  263. 

Where  the  action  is  for  money 
obtained  by  threats  and  duress,  it 
is  not  necessary  to  allege  that  the 
money  has  not  been  repaid,  as  the 
action  is  not  based  on  contract. 
Woodham  v.  Allen,  130  Cal.  194, 
62  Pac.  Rep.  398. 

Where  the  only  evidence  is  the 
check  which  the  plaintiff  gave  to 
the  defendant  which  the  defendant 
collected  at  the  plaintiff's  bank,  the 
action  will  not  lie,  for  the  presump- 
tion is  that  the  check  was  given 
in  payment  of  a  debt.  Fall  v. 
Haines,  65  N.  H.  118,  23  Atl. 
Rep.  79. 


DEFENDANT   TO    PLAINTIFF'S   USE 


735 


and  it  must  appear   that   defendant   received  money  or 
pecuniary  benefit  equivalent  thereto.42 

3.  Plaintiff's  Title  to  the  Fund. 

Plaintiff  may  recover  on  proof  of  a  contract  made  with 
himself,  in  his  own  name,  although  he  acted  as  agent  of  the 
true  owner  of  the  fund;  for  the  contract  makes  him  the 
trustee  of  an  express  trust.43  So,  under  an  unsealed  contract, 


42  Under  an  express  contract  of  a 
bailee  to  account  for  proceeds,  re- 
covery for  mere  application  of  the 
property  to  defendant's  own  use, 
without  receipt  of  proceeds,  is 
not  allowed.  Moffat  v.  Wood,  Seld. 
Notes,  No.  5,  14.  Compare  Roth 
».  Palmer,  27  Barb.  652.  Whether 
evidence  of  appropriation  by  a 
wrong-doer  is  sufficient,  without 
evidence  of  sale  and  receipt  of 
proceeds,  is  not  agreed.  Compare 
Moses  v.  Arnold,  43  Iowa,  187, 
s.  c.,  22  Am.  Rep.  239;  Norden  v. 
Jones,  33  Wise.  600,  s.  c.,  14  Am. 
Rep.  782;  2  Greenl.  Ev.  88,  §  108, 
n.  5,  and  cases  cited;  Henry  v. 
Man-in,  3  E.  D.  Smith,  71. 

The  burden  of  proof  is  on  the 
plaintiff  to  show  that  the  defend- 
.ant  had  no  authority  to  collect 
and  receive  the  money.  Weiss  v. 
Mendelson,  24  N.  Y.  Misc.  692, 
53  N.  Y.  Supp.  803. 

The  burden  of  proof  is  on  the 
plaintiff  to  show  that  the  reten- 
tion of  the  money  by  the  defendant 
is  inconsistent  with  equity.  Mor- 
rison T.  Morrison,  101  Me.  131, 
63  Atl.  Rep.  392. 

A  complaint  which  alleges  that 
the  defendant  wrongfully  took 
possession  of  land  by  his  tenants, 
and  unlawfully  withheld  the  same 


from  the  plaintiff,  and  specifying 
a  sum  as  the  reasonable  rental  for 
the  land  is  not  demurrable.  Wo- 
mack  v.  Carter,  160  N.  C.  286,  75 
S.  E.  Rep.  1102. 

43  Chapter  XI,  paragraph  1,  of 
this  volume. 

The  burden  is  on  the  plaintiff  to 
prove  title  to  the  fund  which  he 
seeks  to  recover.  Bishop  v.  Tay- 
lor, 41  Fla.  77,  25  So.  Rep.  287. 

The  burden  of  proving  the  facts 
from  which  to  imply  a  promise  to 
repay  is  on  the  plaintiff.  Gile  v. 
Interstate  Motor  Car  Co.,  27 
N.  D.  108,  145  N.  W.  Rep.  732, 
L.  R.  A.  1915,  B.  109. 

The  plaintiff  must  prove  his 
case  by  preponderance  of  evi- 
dence; it  is  not  necessary  to  prove 
it  beyond  a  reasonable  doubt. 
Broaddus  v.  Bruce,  177  111.  App. 
183. 

Unless  the  plaintiff  can  show  that 
he  has  title  to  or  some  interest 
in  or  lien  on  the  money  claimed 
he  cannot  recover.  Carolina  Glass 
Co.  v.  Murray,  197  Fed.  Rep.  392. 

The  evidence  must  establish  that 
the  money  in  justice  belongs  to 
the  plaintiff  before  he  can  recover. 
Richolson  v.  Moloney,  96  III. 
App.  254. 

Where    a    newspaper    publisher 


736 


ACTIONS    FOR   MONEY   RECEIVED    BY 


he  may  recover  on  parol  proof  that  he  was  the  real  principal, 
and  that  the  contract  was  made  by  his  consent,44  or  with 
his  agent,  though  without  his  consent.45  Parol  evidence  is 
competent  to  show  that,  in  an  unsealed  46  contract 47  made 
by  another  in  his  own  name,48  the  plaintiff  was  the  real  prin- 
cipal, whether  disclosed  49  to  defendant  or  not.50  The  dec- 
larations of  the  depositor  or  payer  of  money,  made  as 
part  of  the  res  gestce  of  payment,  are  competent  to  show  the 
source  of  the  fund  for  the  purpose  of  proving  in  whom  was  the 
title.51  And  the  letters  in  which  plaintiff  received  the  fund 


solicits  and  receives  subscriptions 
to  a  fund  for  the  support  of  the 
families  and  dependent  relatives  of 
dead  firemen,  he  becomes  a  volun- 
tary trustee  of  the  fund  with  large 
discretionary  powers  to  determine 
who  compose  such  families  and  de- 
pendent relatives  among  whom  the 
moneys  are  to  be  distributed,  and, 
except  in  case  of  gross  abuse  a 
court  would  not  interfere  with  his 
determination.  Hallinan  v.  Hearst, 
133  Cal.  645,  66  Pac.  Rep.  17,  55 
L.  R.  A.  216. 

"  Fischesser0.Heard,42Geo.531. 

In  an  action  for  money  had  and 
received  to  the  use  of  the  plaintiff, 
it  is  unnecessary  for  the  plaintiff 
to  allege  the  source  of  his  title, 
or  the  facts  or  circumstances  out 
of  which  the  indebtedness  to  him 
arose.  Hofferberth  v.  Duckett, 
175  App.  Div.  498,  162  N.  Y. 
Supp.  167. 

45  Calland  v.  Lloyd,  6  Mees  & 
W.  26. 

Where  a  husband  sues  a  life  in- 
surance company  for  money  had 
and  received,  being  premiums  paid 
by  the  wife  on  a  policy  on  his  life 
of  which  policy  he  had  no  knowl- 


edge, his  testimony  that  she  had 
no  income  and  never  earned  any 
money  will  not  be  sufficient  to 
establish  that  the  money  paid  to 
the  company  was  his  money.  Met- 
ropolitan Life  Ins.  Co.  v.  Mono- 
han,  102  Ky.  13,  19  Ky.  Law.  Rep. 
992,  42  S.  W.  Rep.  924. 

46  As    to    sealed    contracts,    see 
Briggs    v.    Partridge,    64    N.    Y. 
357,  affi'g  39  Super.  Ct.  (J.  &  S.) 
339. 

47  Even  though  such  as  the  stat- 
ute of  frauds   requires   to   be   in 
writing.      Ford    v.    Williams,    21 
How.  U.  S.  287,  s.  P.,  Dykers  v. 
Townsend,  24  N.  Y.  57. 

48  It  is  not  material  that  the  con- 
tract does  not  indicate  that  the 
apparent    party    was    an    agent. 
Ford  v.  Williams  (above). 

49  See  Ford  v.  Williams,  21  How. 
U.  S.  287;  Hubbert  v.  Borden,  6 
Whart.  (Pa.)  79,  91. 

50  See  N.  J.  Steam  Nav.  Co.  /•. 
Merchants'  Bank,   6   How.  U.  S. 
344,  381. 

51  Stair  v.  York  Nat.  Bank,  55 
Penn.  St.  364,  s.  p.,  Bank  v.  Ken- 
nedy, 17  Wall.  19. 

In  an  action  by  a  wife  against  a 


DEFENDANT   TO    PLAINTIFF  S   USE 


737 


are  competent  as  bearing  on  the  question,  though  not 
necessarily  as  proof  of  the  facts  stated  therein.52  If  declara- 
tions as  to  the  source  or  title  of  the  fund  are  shown  to  have 
been  made  in  presence  of  the  defendant,  they  are  competent, 
in  connection  with  evidence  of  his  tacit  admission  or  other 
conduct  under  them.53  Defendant's  declaration  to  plaintiff 
that  he  holds  the  fund  subject  to  his  order  is  sufficient 
prima  facie  evidence  of  plaintiff's  title.54  But  privity  of  con- 
tract is  not  essential.55 


4.  The  Receipt  of  the  Money  by  Defendant. 

The  action  is  not  sustained  unless  there  has  been  an  actual 
receipt  of  money  by  the  defendant,  or  something  equivalent 
to  it,56  or  unless  the  defendant  is  estopped  by  representa- 


bank  for  money  paid  on  checks 
issued  by  her  husband,  it  appeared 
that  the  husband  had  deposited 
money  to  her  account  for  which 
he  received  a  bank  book  in  her 
name,  marked  "Special  Deposit." 
It  was  held  error  to  exclude  the 
bank  president's  testimony  that  at 
the  time  the  deposit  was  made  the 
husband  had  given  directions  that 
both  his  and  his  wife's  checks 
should  be  honored.  Anniston  Nat. 
Bank  v.  Howell,  116  Ala.  375,  22 
So.  Rep.  471. 

82  Darling  v.  Miller,  54  Barb. 
149;  see  chapter  VI,  paragraph  9, 
of  this  volume,  and  paragraph  15 
of  chapter  XII. 

53  Hayslep  v.  Gywmer,  1  Ad.  & 
E.  162. 

64  Stacy  v.  Graham,  3  Duer,  444. 

55  Causidiere  v.  Beers,  1  Abb.  Ct. 
App.  Dec.  333;  Ela  v.  Am.  Mer- 
chants' Union  Express  Co.,  29 
Wise.  611,  s.  c.,  9  Am.  Rep.  619; 
Cutler  v.  Demmon,  111  Mass.  474; 


Ross  v.  Curtis,  30  Barb.  238.  See 
Farmers'  Bank,  etc.,  Co.  v.  Shut, 
192  Ala.  53,  68  So.  Rep.  363. 

It  is  not  necessary  to  prove  that 
there  was  a  privity  of  contract,  as 
long  as  the  defendant  has  received 
money  belonging  to  the  plaintiff. 
Bates-Farley  Savings  Bk.  v.  Dis- 
mukes,  107  Ga.  212,  33  S.  E.  Rep. 
175;  Richardson  v.  Moffit-West 
Drug  Co.,  92  Mo.  App.  515,  69  S. 
W.  Rep.  398;  Madden  v.  Watts, 
59  S.  C.  81,  37  S.  E.  Rep.  209. 

56  Price  ».  Oriental  Bank,  38 
Law  J.  N.  S.  41,  s.  c.,  26  Weekly 
R.  543. 

Plaintiff  cannot  recover  unless 
he  can  show  that  the  money  was 
actually  received  by  the  defendant. 
J.  V.  Le  Clair  Co.  v.  Rogers-Ruger 
Co.,  124  Wis.  44,  102  N.  W.  Rep. 
346;  Nelson  v.  First  Nat.  Bk.,  139 
Ala.  578,  36  So.  Rep.  707,  101  Am. 
St.  Rep.  52;  Minor  v.  Baldridge, 
123  Cal.  187,  55  Pac.  Rep.  783. 

One  who  receives  money  from 


738 


ACTIONS   FOB   MONEY   RECEIVED    BY 


tions  made  to  the  plaintiff  from  denying  the  receipt.57  But 
it  is  enough  that,  on  all  the  facts,  it  may  fairly  be  presumed 
that  defendant  has  received  plaintiff's  money.  Positive 
evidence  is  not  required.58  For  this  purpose  evidence  of  its 
payment  over  the  counter  of  the  defendant's  office,  to  a  per- 
son acting  as  clerk  and  apparently  in  authority,  is  competent 
to  go  to  the  jury.59  Where  there  are  several  defendants, 
partnership,60  or  a  joint  reception,  or  a  joint  interest,  or  a 
joint  contract,61  should  be  shown.  An  acknowledgment  of 


another  with  instructions  to  pay 
a  debt  due  from  the  sender  to  a 
stranger,  and  does  not  so  apply 
the  money,  is  liable  in  an  action 
for  money  had  and  received.  Clark 
v.  Jenness,  188  Mass.  297,  74  N.  E. 
Rep.  343;  Kidder  v.  Biddle,  13 
Ind.  App.  653,  42  N.  E.  Rep. 
293. 

Where  a  mortgage  is  made  pay- 
able out  of  the  proceeds  of  the  sale 
of  certain  products  grown  on  the 
mortgaged  premises,  the  presump- 
tion is  that  after  a  reasonable  time 
has  elapsed  the  products  have  been 
sold,  and  an  action  by  the  mort- 
gage holder  for  money  had  and  re- 
ceived will  lie.  Barfield  v.  Mc- 
Combs,  89  Ga.  799,  15  S.  E.  Rep. 
666. 

"  Where  the  defendant  is  proved 
to  have  in  his  hands  the  money  of 
the  plaintiff,  which  ex  aequo  et  bono 
he  ought  to  refund,  the  law  con- 
clusively presumes  that  he  has 
promised  to  do  so,  and  the  jury 
are  bound  to  find  accordingly; 
and,  after  verdict,  the  promise  is 
presumed  to  have  been  actually 
proved."  Mayo  v.  Purington,  113 
Me.  452,  94  Atl.  Rep.  935. 

"As,  for  instance,  where  plain- 


tiff has  acted  on  the  representation 
by  settling  with  third  persons,  or 
as  in  the  case  of  a  sheriff's  return. 
See  also  Bullard  v.  Hascall,  25 
Mich.  132. 

"A  balance  struck  in  a  pass  book 
is  in  effect  an  account  stated  be- 
tween the  bank  and  its  depositor, 
which  it  is  true  may  be  impeached 
for  fraud  or  error,  but  unless  so 
impeached  the  bank  is  estopped 
from  denying  its  liability  as  shown 
by  the  account"  so  stated  by  it. 
Greenhalgh  Co.  v.  Farmers'  Nat. 
Bank,  226  Pa.  St.  184,  75  Atl.  Rep. 
260,  134  Am.  St.  Rep.  1016,  18 
Ann.  Cas.  330. 

MTuttle  v.  Mayo,  7  Johns.  132. 

89  Newman  v.  North  Am.  Steam- 
ship Co.,  113  Mass.  362;  Gary 
First  Nat.  Bank  v.  Josefoff,  57 
Ind.  App.  320,  105  N.  E.  Rep. 
175. 

^Gilchrist  v.  Cunningham,  8 
Wend.  641. 

61  Manahan  v.  Gibbons,  19  Johns. 
427. 

"Where  more  than  one  person  is 
sued,  a  joint  recovery  of  the  whole 
amount  against  all  will  not  be  au- 
thorized, unless  it  appears  that  all 
received  the  money  jointly.  If  it 


DEFENDANT   TO    PLAINTIFF'S   USE  739 

having  received  the  money,,  made  by  defendant  in  any  form, 
is  competent  evidence  against  him.62  Thus  the  considera- 
tion named  in  the  agent's  conveyance  to  a  third  person  is 
competent  against  the  agent;63  but  it  does  not  conclude 
plaintiff  as  to  the  amount.64  If  a  receipt  was  given  by  de- 
fendant to  the  plaintiff,  or  to  the  third  person  from  whom 
the  money  was  received,  it  is  not  necessary  to  produce  or 
account  for  it,  unless  some  question  arises  on  its  terms.  Its 
terms  are  not  conclusive  against  either  party,  but  explainable 
by  parol,65  unless  grounds  for  an  estoppel  appear. 

Where  defendant's  duty  was  to  sell  and  collect,  evidence 
of  a  sale  alone  is  not  alone  enough  66  without  other  evidence 
raising  a  presumption  of  collection.  But  if  defendant  is  a 
wrongdoer,  or  neglect  to  collect  were  a  breach  of  duty, 
his  admission  that  he  had  sold  the  goods  is  enough  to  go  to 
the  jury  from  which  they  may  infer  receipt  of  proceeds.67 

If  the  money  was  received  by  collecting  a  written  security 
or  evidence  of  debt  from  a  third  person,68  the  instrument 

was  not  so  received,  the  plaintiff  Mahler  v.  Hyman,  17  N.  Y.  Supp. 

can  only  recover  from  each  defend-  588. 

ant  separately  the  amount  shown  M  Thalheimer  v.  Brinckerhoff,  6 

to   have    come   into   his   hands."  Cow.  90. 

Great  Southern  Ace.,  etc.,  Co.  v.  64  Mains  v.  Haight,  14  Barb.  76. 

Guthrie,  13  Ga.  App.  288,  79  S.  E.  65  White  v.  Parker,  8  Barb.  48, 

Rep.  162.  69;  Phelps  v.  Bostwick,  22  Barb. 

62  As    to    qualified    oral    admis-  314 ;  Union  Bank  v.  Solles,  2  Strobh. 

sions,  see  chapter  XIII,  paragraph  390. 

20  of  this  vol.  66  Haskins    v.    Dunham,    Anth. 

The  plaintiff  may  recover,  how-  N.  P.  111. 

ever,  even  if  he  does  not  produce  67  Hathaway    v.    Burr,    21    Me. 

the  original  receipt  or  account  for  567. 

its  absence.  Kelsey  v.  Dickson,  2  **  As,  for  instance,  where  one  who 
Blackf.  (Ind.)  236.  collected  a  running  account  (Plant- 
Thus  where  an  attorney,  having  ers'  Bank  v.  Farmers'  Bank,  3  Gill 
a  claim  for  collection,  on  being  re-  &  J.  [Md.]  449,  469) ;  or  a  warrant 
quested  to  pay  over  $20  collected,  of  attorney  to  confess  judgment 
replied  that  he  would  "straighten  (Bayne  v.  Stone,  4  Esp.  13);  or 
up"  when  he  collected  the  balance  a  judgment  (Martin  r.  Williams, 
of  the  claim,  this  was  held  a  "plain  1  Dev.  L.  N.  C.  386),  or  an  award 
admission  of  the  receipt  of  the  $20."  (Brinckerhoff  p.  Wemple,  1  Wend. 


740 


ACTIONS    FOE   MONEY   RECEIVED    BY 


need  not  be  produced  or  accounted  for  in  order  to  let  in  parol 
proof  of  the  collection  of  the  sum  due  on  it; 69  but  the  instru- 
ment is  competent  in  favor  of  plaintiff  if  he  chooses  to  put 
it  hi  evidence,70  and  being  only  collaterally  in  question, 
subscribing  witnesses  need  not  be  produced  unless  it  is  under 
seal.71 

6.  — by  an  Agent  of  Defendant. 

If  payment  to  a  third  person  is  relied  on,  there  must  be 
some  evidence  that  he  was  defendant's  agent.72    Evidence 


470),  or  a  negotiable  note  or  draft 
(Bullard  n.  Hascall,  25  Mich.  132; 
Sally  v.  Capps,  1  Ala.  121),  is  sued 
for  the  proceeds,  plaintiff  need  not 
produce  nor  account  for  the  in- 
strument. 

89  s.  P.,  Steele  v.  Lord,  70  N.  Y. 
283. 

70  See,   for   instance,   French   v. 
Shreeve,    18   N.   J.   Law   Rep.   3 
<Harr.)  147;  Geisse  v.  Dobson,  3 
Whart.  (Pa.)  34. 

71  Rundle  v.  Allison,  34  N.  Y.  180, 
184. 

72  Farias  v.  De  Lizardi,  4  Rob. 
407;  and  see  chapter  XII,  para- 
graph 7  of  this  vol. 

"The  rule  is,  that  any  agent  of 
the  bank  who  receives  a  deposit 
from  a  customer  within  the  bank 
during  banking  hours,  binds  the 
bank  unless  the  dealer  had  notice 
of  lack  of  power."  Thus  an  inter- 
preter who  within  banking  hours, 
in  an  office  of  the  bank  accepted 
money  from  one  who  could  neither 
read  nor  write  English  was  held 
to  be  an  agent  accepting  money 
for  the  bank,  even  though  he  gave 
his  personal  receipt  for  the  de- 
positor's money.  Gary  First  Nat. 


Bank  v.  Josefoff,  57  Ind.  App.  320, 
105  N.  E.  Rep.  175. 

A  bank  cashier,  from  the  nature 
of  banking  business,  was  held  to 
be  the  bank's  agent  and  not  the 
plaintiff's,  for  the  transmission  of 
the  plaintiff's  deposit  to  another 
bank  and  the  opening  of  an  account 
with  the  latter  in  the  plaintiff's 
name.  Goshorn  v.  People's  Nat. 
Bank,  32  Ind.  App.  428,  69  N.  E. 
Rep.  185,  102  Am.  St.  Rep.  248, 
and  see  also  Heim  v.  Humboldt 
First  Nat.  Bank,  76  Neb.  831, 
107xN.  W.  Rep.  1019. 

Certain  agents  of  a  corporation 
with  authority  to  sell  its  stock  for 
cash  delegated  that  duty  to  others 
whom  the  plaintiff  paid  and  who, 
after  deducting  their  commission, 
remitted  the  balance  to  the  cor- 
poration's agents.  It  was  held 
that  this  balance  could  be  re- 
covered from  the  corporation  ;is 
money  paid  to  its  agents,  except 
the  amount  deducted  as  commis- 
sion, since  that  sum  was  not  paid 
to  duly  authorized  agents  of  the 
corporation.  Great  Southern  Ace., 
etc.,  Co.  v.  Guthrie,  13  Ga.  App. 
288,  79  S.  E.  Rep.  162. 


DEFENDANT   TO   PLAINTIFF'S   USE 


741 


of  the  declarations  of  the  alleged  agent  are  not  competent 
for  the  purpose  of  proving  the  agency,  unless  there  is  some- 
thing to  connect  the  defendant  with  the  declarations.73 
Evidence  that  the  defendant  was  informed  by  the  alleged 
agent  of  his  receipt  of  the  fund,  and  thereupon  gave  him 
directions  as  to  its  disposal,  is  competent  evidence  that  de- 
fendant received  the  money.74  Where  the  authority  shown 
was  not  a  general  agency,  but  a  special  authority, — par- 
ticularly if  conferred  by  a  principal  acting  in  autre  droit,  as, 
for  instance,  an  executor  authorizing  an  attorney  to  take 
out  ancillary  administration  in  another  State  and  sell  assets 
there, — the  person  dealing  with  the  agent  must  look  to  his 
authority,  and  cannot  recover  of  the  principal  on  proof  of 
money  received  by  the  agent  only.75  A  sufficient  agency 
having  been  proved,  a  receipt  given,  or  admission  of  pay- 
ment made,  by  the  agent,  at  the  time  of  the  transaction,  is 
admissible  against  the  principal.76 


71  Snook  v.  Lord,  56  N.  Y.  605. 

"It  is  competent  for  a  person  to 
testify  that  he  acted  as  agent  for 
another,  though  mere  hearsay  evi- 
dence of  declarations  of  agency 
is  inadmissible."  Great  Southern 
Ace.,  etc.,  Co.  v.  Guthrie,  13  Ga. 
App.  288,  79  S.  E.  Rep.  162. 

74  Coates  v.  Bainbridge,  5  Bing. 
58. 

75  Owings  v.  Hull,  9  Pet.  607. 
76Thalheimer  v.  Brinckerhoff,  6 

Cow.  90,  s.  P.,  Anderson  v.  Broad, 
2  E.  D.  Smith,  530,  s.  c.,  12  N.  Y. 
Leg.  Obs.  187. 

Likewise  where,  from  the  nature 
of  banking  business,  a  cashier  was 
held  to  be  the  agent  of  the  bank 
for  the  transmission  of  the  plain- 
tiff's deposit  to  another  bank  there 
to  be  deposited  to  the  plaintiff's 
account,  the  receipt  given  to 
the  plaintiff  was  prima  facie  evi- 


dence of  payment  of  the  money  to 
the  defendant  bank.  Goshorn  v. 
People's  Nat.  Bank,  32  Ind.  App. 
428,  69  N.  E.  Rep.  185,  102  Am. 
St.  Rep.  248. 

In  an  action  for  money  received, 
it  appeared  that  the  defendant 
collecting  agency  had  a  schedule 
of  charges  providing  for  a  10%  fee 
where  attorneys'  services  were  re- 
quired. Inasmuch  as  the  plain- 
tiff saw  this  schedule  at  the  time 
the  contract  with  the  defendant 
was  made,  it  was  held  admissible, 
though  a  printed  schedule  of  the 
defendant's  charges  providing  that 
the  above  10%  rate  did  not  apply 
in  cities  where  a  bar  rate  prevailed 
was  held  inadmissible  in  the  ab- 
sence of  proof  that  the  plaintiff 
had  ever  seen  this  schedule.  Credit 
Clearing  House  v.  Wheeland  Co., 
18  Ga.  App.  475,  89  S.  E.  Rep.  634. 


742 


ACTIONS   FOR   MONEY   RECEIVED   BY 


6.  The  Medium  and  Amount  of  Payment. 

The  evidence  must  show  payment  of  money,  or  that  which 
the  parties  treated  as  money,  or  which  the  defendant  ought 
to  account  for  as  such.  Evidence  of  the  receipt  of  foreign 
money  is  competent;77  so,  of  course,  of  bank  notes;78  but 
defendant  may  show  the  depreciated  character  of  the  medium 
of  payment,  except  where  it  was  a  breach  of  his  duty  to 
plaintiff  to  accept  such  currency.79  The  delivery  of  non- 
negotiable  things  in  action,  or  other  property,  is  not  ap- 
propriate under  an  allegation  of  money  received,80  unless 
connected  with  evidence  that  defendant  expressly  accepted 
the  property  as  a  payment  of  money,  or  that  he  has  actually 


77  Ehrensperger  v.   Anderson,   3 
Exch.  149,  156. 

See  also  Guinan  v.  Blum,  93 
Misc.  667,  157  N.  Y.  Supp.  279; 
Mayer  v.  Metropolitan  Traction 
Co.,  165  App.  Div.  497,  150  X.  Y. 
Supp.  1026. 

"It  is  not  always  necessary  that 
actual  money  shall  have  been  re- 
ceived. If  property  or  anything 
else,  be  received  as  the  equivalent 
of  money,  by  one  who  assumes  to 
cancel  or  dispose  of  a  property 
right,  for  which,  by  contract,  or 
liability,  legal  or  equitable,  it  is 
his  duty  to  account  to  another, 
the  latter  may  treat  the  transac- 
tion as  a  receipt  of  money,  and  sue 
for  it  as  such."  Barnett  v.  War- 
ren, 82  Ala.  557,  2  So.  457,  quoted 
with  approval  in  Farmers'  Bank, 
etc.,  Co.  v.  Shut,  192  Ala.  53,  60, 
68  So.  Rep.  363.  In  the  latter  case 
the  defendant  received  logs  which 
he  converted  into  the  money  for 
which  the  plaintiff  sued. 

78  Pickard  v.  Bankes,  13  East  20. 
See  Mason  v.  Waite,  17  Mass.  560. 


"In  regard  to  things  treated  as 
money,  it  has  been  held  that  this 
count  may  be  supported  by  evi- 
dence of  the  defendant's  receipt 
of  bank  notes."  2  Greenl.  Ev. 
§  118.  See  also  Gordon  v.  Camp, 
2  Fla.  422. 

79  See  Cockrill  v.  Kirkpatrick,  9 
Mo.  688. 

80  Nightingale    v.    Devisme,    5 
Burr.  2589. 

The  plaintiff  may  produce  the 
unauthorized  promissory  notes  of 
the  defendant  as  proving  that  the 
amount  shown  on  their  face  was 
advanced  by  the  plaintiff.  Pauly 
r.  Pauly,  107  Cal.  8,  40  Pac.  Rep. 
29, 48  Am.  St.  Rep.  98. 

Where  goods  or  property  have 
been  wrongfully  converted  into 
money  an  action  for  money  had  and 
received  will  lie.  Southern  Ry.  Co. 
x.  Born  Steel  Range  Co.,  122  Ga. 
658,  50  S.  E.  Rep.  488;  Nelson  v. 
Kilbride,  113  Mich.  637,  71  N.  W. 
Rep.  1089;  Green  v.  Lepley,  88 
111.  App.  543. 


DEFENDANT   TO    PLAINTIFF'S   USE  743 

turned  it  into  money  or  its  equivalent,  or  that  it  was  in- 
tended between  him  and  the  plaintiff  to  be  sold,  and  suf- 
ficient time  has  elapsed  to  do  so,  and  that  he  is  in  default 
for  not  accounting.  A  credit  in  account  with  a  third  person 
may  be  proved  under  an  allegation  of  money  received,  if 
accepted  by  defendant  as  a  set  off  equivalent  to  money,81  or 
if  allowed  in  violation  of  his  duty  and  to  the  prejudice  of 
plaintiff.  Under  the  new  procedure,  however,  if  defendant 
is  shown  to  have  received  money  value,  a  variance  in  the 
medium  is  not  an  entire  failure  of  proof,  but  material  if  de- 
fendant is  prejudiced.  The  evidence  must  tend  to  show  a 
definite  sum,82  or  certain  data  from  which,  by  an  arithmetical 
calculation,  the  jury  may  ascertain  the  sum,83  and  it  is  no 
objection  that  the  fund  was  received  mixed  with  other 
moneys,  if  a  several  right  of  action  is  shown  to  exist  in  plain- 
tiff for  his  share.84  Variance  in  the  amount  may  be  disre- 
garded,85 within  the  limits  of  recovery  fixed  by  the  demand 
for  judgment.  If  the  receipt  of  coins  or  bank  notes  is  proved 
without  proof  of  their  denomination,  the  smallest  denomina- 

81  Noy  v.  Reynolds,  1  Ad.  &  E.         An  action  could  not  be  main- 
159.  tained  as  for  money  had  and  re- 

Where  the  plaintiff,  pursuant  to  ceived   from   the   sale   of   certain 

an  agreement  with  a  railroad  con-  shares  of  stock  which  had  been 

tractor's   agent,  boarded  the   con-  sold  together  with  a  note  for  a 

tractor's   employees,    it   was   held  lump  sum,  since  it  did  not  appear 

that  when  the  contractor,  with  his  that  any  specific  sum   had   been 

employee's  consent,  credited  them  received    for    the   stock,    and    no 

with  the  payment  of  the  plaintiff's  means   were  suggested   for  ascer- 

board     bills     and     deducted     the  taining   what    proportion    of   this 

amounts  from  their  wages  he  was  lump  sum  had  been  paid  therefor, 

liable  to  the  plaintiff  as  for  money  French  v.  Robbins,  172  Cal.  670, 

received,  even  though  he  had  never  158    Pac.    Rep.    188.      See    also 

actually    received    the   money   so  Palmer  v.  Guillow,  224  Mass.  1, 

credited.     Edwards  v.  Mt.  Hood  112  N.  E.  Rep.  493. 

Const.  Co.,  64  Or.  308,  130  Pac.  83Taukersley    v.    Childers,    23 

Rep.  49.  Ala.  781. 

82  Harvey  v.  Archbold,  3  B.  &  «« See  Green  v.  Givan,  33  N.  Y. 
C.  626.  343. 

See  also  Bothman  v.  County  of         85  Lass    v.  Wetmore,  2    Sweeny 
Jackson,  194  111.  App.  255.  209. 


744 


tion  in  circulation  is  to  be  presumed,86  in  the  absence  of 
fraud  or  fraudulent  concealment. 


7.  Action  by  Depositor  against  Bank. 

A  certificate  of  deposit,87  as  well  as  evidence  of  an  ordin- 
ary deposit  in  account,  is  competent  in  an  action  for  money 
received.  An  ordinary  certificate  of  deposit  is  not  a  con- 
tract, within  the  rule  excluding  parol  evidence,88  and  if  it 
be,  parol  evidence  is  competent  to  explain  abbreviations, 
etc.,  in  it,89  and  to  charge  the  bank  by  showing  that  the  de- 
positor justly  supposed  he  was  dealing  with  them  although 
the  certificate  was  signed  by  an  officer  individually.90 

Evidence  of  usage  is  not  admissible  to  show  that  deposits 
made  during  depreciation  of  currency,  and  marked  in  the 
pass-book  respectively,  "coin"  or  " currency,"  were  ahvays 
to  be  repaid  hi  kind,  for  without  special  agreement,  a  bank 
deposit  creates  a  debt,  and  whatever  is  legal  tender  will 
discharge  it.  Usage  cannot  alter  the  law.91  The  fact  that 


86  2  Greenl.  Ev.  109,  §  129a. 

87  Talladega  Ins.  Co.  v.  Landers, 
43  Ala.  115,  134. 

A  deposit  slip  providing  for  the 
payment  of  the  money  deposited 
upon  the  happening  of  a  certain 
contingency,  made  by  the  cashier 
of  a  bank  in  the  usual  and  ordinary 
course  of  business,  is  prima  facie 
evidence  of  the  liability  of  the 
bank.  National  Bank  v.  Presnall, 
58  Kan.  68, 49  Pac.  Rep.  556. 

The  case  of  Hotchkiss  v.  Mosher 
cited  in  note  below  has  been  held 
to  have  been  overruled  on  the  point 
that  a  certificate  of  deposit  is  a 
mere  receipt.  In  re  Baldwin,  170 
N.  Y.  156,  63  N.  E.  Rep.  62,  58 
L.  R.  A.  122.  But  see  later  case 
Young  v.  American  Bank,  44  Misc. 
305,  89  N.  Y.  Supp.  913. 


88  Hotchkiss  v.  Mosher,  48  N.  Y. 
478. 

89Hulbert  v.  Carver,  37  Barb. 
62,  and  cases  cited. 

90  Coleman  v.  First  Nat.  Bank  of 
Elmira,  53  N.  Y.  388,  394,  and  al- 
though, as  between  the  officer  and 
the    bank,    it    was    the    officer's 
private   transaction.      Caldwell   r. 
National  Mohawk  Valley  Bank,  64 
Barb.  333.     Whether  deposit  was 
made  with  teller,  as  such,  or  per- 
sonally, a  question  of  fact  for  the 
jury.      Id.;    Pattison   v.    Syracuse 
Nat.  Bank,  4  Supra.  Ct,  (T.  &  C.) 
96. 

91  Thompson  v.   Riggs,   5  Wall. 
663,     680.       Contra,     Chesapeake 
Bank  v.  Swain,  29  Md.  483.    As  to 
when  the  credit  given  for  a  deposit 
is  conclusive,  see  Manhattan  Co. 


DEFENDANT   TO    PLAINTIFF  S   USE 


745 


plaintiff's  book  has  been  balanced,  does  not  dispense  with 
the  necessity  of  proving  demand  before  suit.92  The  balanc- 
ing and  return  of  the  pass-book  has  the  effect  of  an  account 
stated,  but  a  depositor  is  not  concluded  if  he  objects  within 
a  reasonable  time; 93  still  the  burden  is  upon  him  to  show  the 
error.94  Drawing  for  the  precise  balance  is  evidence  of  ac- 


v.  Lydig,  4  Johns.  377;  Mechan- 
ics' &  Farmers'  Bank  v.  Smith, 
15  Id.  115;  Oddie  v.  National  City 
Bank,  45  N.  Y.  735;  Hepburn  v. 
Citizens'  Bank,  2  La.  Ann.  1007. 

The  relation  of  creditor  and 
debtor  is  held  to  exist  between  a 
depositor  and  his  bank.  Parker- 
Smith  v.  Prince  Mfg.  Co.,  172 
App.  Div.  302, 158  N.  Y.  Supp.  346. 

92Downes  v.  Phoenix  Bank,  6 
Hill,  297;  and  see  Payne  v.  Gar- 
diner, 29  N.  Y.  146. 

But  it  was  held  that  no  demand 
was  necessary  where  a  bank,  with- 
out authority,  paid  the  depositor's 
note,  charged  the  amount  so  paid 
to  his  account  and  returned  it  with 
his  cancelled  checks.  Elliott  v. 
Worcester  Trust  Co.,  189  Mass. 
542,  75  N.  E.  Rep.  944. 

93  Schneider  v.  Irving  Bank,  1 
Daly,  500,  s.  c.,  30  How.  Pr.  190; 
Hutchinson  v.  Market  Bank,  48 
Barb.  302. 

"It  is  well  settled  that  the  entry 
of  debits  for  payments  made  in  a 
bank  book  and  striking  a  balance 
is  undoubtedly  the  statement  of 
the  account,  and  the  delivery  of 
it  to  the  dealer,  and  his  retention 
of  it  without  objection  .  .  .  gives 
to  this  statement  of  accounts  the 
character  of  a  stated  account." 
August  v.  Fourth  Nat.  Bank,  48 
Hun  620,  1  N.  Y.  Supp.  139,  141. 


"A  balance  struck  in  a  pass  book 
is  in  effect  an  account  stated  be- 
tween a  bank  and  its  depositor, 
which  it  is  true  may  be  impeached 
for  fraud  or  error,  but  unless  so 
impeached  the  bank  is  estopped 
from  denying  its  liability  as  shown 
by  the  account  so  stated  by  it." 
Greenhalgh  Co.  v.  Farmers'  Nat. 
Bank,  226  Pa.  184,  75  A.  Rep.  260, 
134  Am.  St.  Rep.  1016,  18  Ann. 
Cas.  330. 

A  balanced  pass-book,  when  re- 
turned to  the  depositor  consti- 
tutes a  statement  of  the  account 
between  the  bank  and  the  deposi- 
tor, and  thereupon  it  is  the  deposi- 
tor's duty  to  examine  the  same 
within  a  reasonable  time.  Janin 
v.  London,  etc.,  Bank,  92  Cal. 
14,  27  Pac.  Rep.  1100,  14  L.  R.  A. 
320, 27  Am.  St.  Rep.  82.  For  other 
cases  see  list  29  L.  N.  S.  339  n. 

94  Shepard  v.  Bank  of  State  of 
Missouri,  15  Mo.  143. 

The  burden  of  proving  error  was 
held  to  rest  upon  the  plaintiff  who 
received  and  retained  without  ob- 
jection his  balanced  pass-books 
and  vouchers.  August  v.  Fourth 
Nat.  Bank,  48  Hun  620,  1  N.  Y. 
Supp.  139. 

A  depositor  upon  receiving  his 
balanced  pass-book  and  vouchers 
has  the  burden  of  proving  that  a 
check  with  which  he  was  debited 


746 


ACTIONS    FOR   MONEY   RECEIVED    BY 


quiescence.95  But  payments  by  the  bank  on  checks  hi  which 
the  depositor's  signature  was  forged,96  are  made  hi  their  own 
wrong,  and  plaintiff's  delay  to  discover  the  forgery  does  not 
avail  defendants,97  unless  defendants  show  negligence  to  their 
prejudice.98  The  books  of  the  bank  are  evidence  against 


was  a  forgery.  Janin  v.  London, 
etc.,  Bank,  92  Cal.  14,  27  Pac.  Rep. 
1100,  14  L.  R.  A.  320,  27  Am.  St. 
Rep.  82. 

?5  Lockwood  v.  Thome,  11  N.  Y. 
170,  rev'g  12  Barb.  487. 

96  Weisser  v.  Denison,  10  N.  Y. 
68..  Otherwise  of  raised  checks, 
chapter  XIV,  paragraph  4  of  this 
vol. 

"The  general  rule  of  law  is  that 
a  bank  may  pay  and  charge  to  its 
depositor  only  such  sums  as  are 
duly  authorized  by  the  latter,  and 
of  course  a  forged  check  is  not  au- 
thority for  such  payment."  Mor- 
gan v.  U.  S.  Mortgage,  etc.,  Co.,  208 
N.  Y.  218,  101  N.  E.  Rep.  871, 
L.  R.  A.  1915,  D.  741,  Ann.  Cas. 
1914,  D.  462. 

"Banks  are  bound  to  know  the 
signatures  of  their  depositors." 
Wachsman  v.  Columbia  Bank,  8 
Misc.  280,  28  N.  Y.  Supp.  711. 
See  also  New  York  Produce  Ex- 
change Bank  v.  Houston,  169  Fed. 
Rep.  785,  95  C.  C.  A.  251. 

"All  unauthorized  payments, 
such  as  upon  forged  checks,  are 
.  .  .  made  at  the  peril  of  the  bank." 
Janin  v.  London,  etc.,  Bank,  92 
Cal.  14,  22,  27  Pac.  Rep.  1100,  14 
L.  R.  A.  320,  27  Am.  St.  Rep.  82. 

One  is  entitled,  "to  assume  that 
the  bank,  before  paying  the  check, 
had  ascertained  the  genuineness 
of"  an  indorsement.  Harter  v. 


Mechanics'  Nat.  Bank,  63  N.  J. 
Law  Rep.  578, 44  Am.  Rep.  715,  76 
Am.  St.  Rep.  224. 

97  Welsh  v.  German  American 
Bank,  42  Super.  Ct.  (J.  &  S.)  462. 

In  Critten  v.  Chemical  Nat. 
Bank,  60  App.  Div.  241,  70  N.  Y. 
Supp.  246,  it  was  held  that  a  de- 
positor owed  the  bank  no  duty  to 
examine  his  bank  account  and  re- 
turned vouchers  to  discover  for- 
geries, but  the  Court  of  Appeals 
held  in  the  same  case  (171  N.  Y. 
219,  63  N.  E.  Rep.  969,  57  L.  R.  A. 
529)  that  there  was  a  duty  to  exer- 
cise reasonable  care  to  verify  the 
vouchers  by  a  comparison  with  the 
stubs  of  his  check  book,  where  he 
possessed  such  stubs. 

"It  is  well  established  that  ap- 
pellants owed  the  duty  of  making 
some  examination  and  verification 
of  their  account  with  the  bank 
when  the  pass  book  and  vouchers 
were  returned."  Morgan  v.  U.  S. 
Mortgage,  etc.,  Co.,  208  N.  Y.  218, 
101  N.  E.  Rep.  871,  L.  R.  A. 
1915,  D.  741,  Ann.  Cas.  1914,  D. 
462. 

98  Chapter  IV,  paragraph  2  of 
this  vol.  In  an  action  against  a 
savings  bank  for  a  mispayment, 
where  the  bank  relied  on  its  rule 
that  it  would  only  be  responsible  for 
ordinary  care  and  diligence,  if  the 
two  signatures  were  so  dissimilar 
that  when  compared  the  discrep- 


DEFENDANT   TO    PLAINTIFF^   USE 


747 


it,"  but  not  in  its  favor.1  The  declarations  of  plaintiff, 
made  at  the  tune  of  the  deposit,  as  part  of  the  res  gestce, 
are  competent  in  his  favor, — for  instance,  to  prove  the 
capacity  in  which  he  claimed  to  hold  the  fund, — and  the 
declarations  of  an  officer  or  clerk  of  the  bank,  made  in  refer- 
ence to  the  accounts,  while  acting  in  the  course  of  his  duty  as 
such,  are  also  competent  against  the  bank.2 


ancy  would  be  easily  and  readily 
discovered  by  a  person  competent 
for  the  position,  then  the  failure 
to  discover  it  would  be  evidence  of 
negligence  which  should  go  to  the 
jury.  Otherwise,  if  the  difference 
was  not  marked  and  apparent,  or 
if  it  would  require  a  critical  ex- 
amination to  detect  it,  and  especi- 
ally if  the  discrepancy  was  one  as 
to  which  competent  persons  might 
honestly  differ  in  opinion.  Ap- 
pleby  v.  Erie  Co.  Savings  Bank, 
62  N.  Y.  12. 

See  also  Janin  v.  London,  etc., 
Bank,  92  Cal.  14,  27  Pac.  Rep. 
1100,  14  L.  R.  A.  320,  27  Am.  St. 
Rep.  82;  Wind  v.  Fifth  Nat.  Bank, 
39  Mo.  App.  72. 

The  burden  of  proving  that  the 
plaintiff  was  neglegent  in  intrust- 
ing the  examination  of  returned 
vouchers  and  balanced  pass-book 
to  his  clerk  rested  on  the  defendant 
which  had  cashed  forged  checks 
drawn  upon  the  plaintiff's  account. 
Wachsman  v.  Columbia  Bank,  8 
Misc.  280,  28  N.  Y.  Supp.  711. 

Where  a  depositor's  agent  forged 
and  cashed  checks  which  he  ex- 
tracted from  the  returned  bundle 
of  vouchers  before  giving  them  and 
the  balanced  pass-book  to  his 
principal,  it  was  held  that  the  fail- 
ure of  the  latter  to  verify  his  ac- 


count by  a  comparison  with  his 
check  list  and  pass-book  was  such 
negligence  as  would  absolve  the 
bank  from  liability  for  the  pay- 
ment of  the  forged  checks.  Morgan 
v.  U.  S.  Mortgage,  etc.,  Co.,  208 
N.  Y.  218,  101  N.  E.  Rep.  871. 
L.  R.  A.  1915,  D.  741,  Ann.  Cas, 
1914,  D.  462.  See  also  Myers  v. 
The  Southwestern  Nat.  Bank, 
193  Pa.  St.  1,  44  Am.  Rep.  280, 
74  Am.  St.  Rep.  672. 
99  See  page  162  of  this  vol. 

1  White  v.  Ambler,  8  N.  Y.  170. 
Unless  it  be  a  foreign  corporation. 
See  page  162  of  this  vol. 

2  Price  v.  Marsh,  1  Car.  &  P.  60; 
page  144  of  this  vol. 

But  statements  that  there  was  a 
certain  deposit  in  the  name  of  a 
third  person,  when  made  by  a 
bank's  officers  in  a  casual  conver- 
sation with  the  plaintiff  who  had 
succeeded  to  such  person's  claim 
against  the  bank  were  held  inad- 
missible. McCoy  v.  City  Nat. 
Bank,  128  Minn.  455,  151  N.  W. 
Rep.  178. 

And  in  an  action  to  recover  an 
alleged  deposit,  which  the  bank 
denied,  evidence  of  the  cashier's 
statement  to  a  witness  that  busi- 
ness kept  up  remarkably  and  that 
he  had  received  a  deposit  from  a 
third  person  for  the  plaintiff  was 


748 


ACTIONS    FOR   MONEY   RECEIVED    BY 


8.  Bank's  Action  for  Over-draft. 

In  the  action  of  the  bank  against  a  depositor  for  an  over- 
draft, the  presumption  is  that  the  depositor  had  funds 
there  to  meet  any  check  drawn  by  him  which  they  are 
shown  to  have  paid,3  and  the  books  of  the  bank  are  not 
of  themselves  evidence  in  then-  favor,  of  the  state  of  his 
account.4 


held  inadmissible  as  having  oc- 
curred after  the  time  the  alleged 
deposit  was  made  and  being  a  nar- 
rative of  past  events.  Bank  of 
Phoenix  City  v.  Taylor,  72  So.  Rep. 
(Ala.)  264. 

After  a  bank  became  insolvent, 
but  before  the  management  of  its 
affairs  had  been  taken  out  of  the 
hands  of  its  directors,  the  bank's 
manager  issued  a  certificate  or 
statement  of  the  account  of  a  de- 
positor in  exchange  for  the  latter's 
pass-book.  It  was  held  that  his 
statement  was  admissible  as  a  re- 
statement of  an  old  account  rather 
than  as  the  creation  of  a  new  one 
after  the  bank's  insolvency.  Ding- 
ley  v.  McDonald,  124  Cal.  90,  56 
Pac.  Rep.  790. 

3  White  v.  Ambler,  8  N.  Y.  170. 

See  Spokane,  etc.,  Trust  Co.  v. 
Huff,  63  Wash.  225,  115  Pac.  Rep. 
80,  33  L.  R.  A.  N.  S.  1023,  Ann. 
Gas.  1912,  D.  491. 

When  a  bank  pays  an  overdraft 
drawn  by  the  defendant  "the  pre- 
sumption of  the  law  is  that  the 
defendant  had  funds  in  the  bank 
to  meet  checks  drawn  by  him  which 
the  said  bank  is  shown  to  have 
paid.  Such  presumption  is  not 
conclusive."  People's  Nat.  Bank 
v.  Rhoades,  28  Del.  65,  90  Atl. 
Rep.  409. 


4  Id.;  State  Bank  v.  Clark,  1 
Hawks  36;  chapter  XII,  para- 
graphs 12  and  13  of  this  vol.  Un- 
less it  be  a  foreign  corporation 
(p.  162),  or  it  be  shown  that  the 
bank  furnished  transcripts  to  its 
depositors,  so  that  its  officers  can 
be  deemed  to  have  been  the  agents 
of  both  parties  for  the  purpose  of 
keeping  the  account  (Union  Bank  v. 
Knapp,  3  Pick.  96),  or  some  other 
special  ground  is  shown.  See  p. 
162  of  this  vol.  As  to  negligence  in 
permitting  plaintiff's  clerk  or  officer 
to  make  over-drafts,  see  Manu- 
facturers' Nat.  Bank  v.  Barnes, 
65  111.  69,  s.  c.,  16  Am.  Rep.  576; 
Tradesman's  Bank  v.  Astor,  11 
Wend.  87. 

But  in  Delaware,  a  statute  allow- 
ing a  book  of  original  charges  to  be 
admitted  to  charge  the  defendant 
with  the  sums  therein  contained 
for  goods  sold  and  delivered,  "and 
other  matters,"  was  held  to  include, 
under  the  latter  clause,  a  bank's 
books  containing  debits  and  credits 
of  depositors;  and  such  book  was, 
therefore,  admitted  to  charge  the 
defendant  in  an  action  to  recover 
the  sum  paid  on  an  overdraft  in 
excess  of  the  amount  on  deposit. 
People's  Nat.  Bank  v.  Rhoades, 
28  Del.  65,  90  Atl.  Rep.  409. 


DEFENDANT   TO    PLAINTIFF'S   USE  749 

9.  Action  by  Principal  against  His  Agent. 

The  agency  of  defendant  may  be  proved  by  direct  testi- 
mony to  the  fact,5  or  by  the  acts  and  conduct  of  the  parties, 
and  evidence  of  what  passed  between  them  hi  reference  to 
the  transactions  in  question.6  The  fact  that  defendant  re- 
ceived or  charged  commissions  is  cogent  evidence  of  agency.7 
On  the  question  of  agency  in  a  particular  transaction,  when 
the  testimony  is  in  conflict,  the  fact  that  defendant  had 
acted  as  such  agent  in  previous  transactions  for  plaintiff  is 
admissible  to  explain  the  language  and  writings  of  the  parties 
in  the  transaction  in  question.  But  the  evidence  of  such 
fact  (if  not  sufficient  to  prove  a  general  agency)  is  not  com- 
petent for  the  purpose  of  proving  an  agency  in  the  particular 
transaction,  or  even  in  determining  the  credibility  of  the 
conflicting  testimony.  The  principle  upon  which  evidence 
of  similar  transactions  to  the  one  in  issue  is  admitted,  is  to 
explain  intent,  not  to  prove  the  act  or  its  probability.8  Under 
an  allegation  of  agency,  evidence  of  a  joint  adventure  is  not 
a  failure  of  proof,  but  raises  a  question  of  variance.9 

A  general  receipt  may  be  explained  by  parol,  even  though 
it  contain  a  general  promise  to  account.10  But  when  the 

5  See  chapter  XII,  paragraph  7,  paper,  or  the  proceeds,  when  col- 
and   chapter  XIII,   paragraph   2,  lected,  but  holds  the  same  in  trust 
of  this  vol.  for  remitting."      State  Nat.  Bank 

6  A  circular,  stencil  plate,  and  v.    First    Nat.    Bank,    124    Ark. 
form  of  invoice  delivered  to  plain-  531,  187  S.  W.  Rep.  673. 

tiff  by  defendant,  while  soliciting  7  Armstrong  v.  Stokes,  L.  R.  7 

consignments,  of  goods  for  sale, —  Q.  B.  598,  s.  c.,  3  Moak's  Eng. 

Held,  competent  as  evidence  bear-  217. 

ing   upon   the   consignments   and  8  Richards  v.  Millard,  56  N.  Y. 

the    terms    on   which    they    were  574,  rev'g  1  Supm.  Ct.  (T.  &  C.) 

made,  and  the  character  in  which  247. 

defendant    proposed    to    plaintiff  9  Power  v.  Fisher,  8  Bosw.  258. 

to  act  in  receiving.    Whittaker  v.  Otherwise  of  an  allegation  of  loan; 

Chapman,  3  Lans.  155.  for  there  is  agency  in  a  partnership 

A  bank  "receiving  a  draft  for  or  joint  adventure,  but  none  in  a 

collection  merely,  is  the  agent  of  loan. 

the  remitter,  drawer  or  forwarding  10  Eaton  v.  Alger,  2  Abb.  Ct.  App. 

bank,  and   takes  no  title  to  the  Dec.  5. 


750  ACTIONS   FOR   MONEY   RECEIVED   BY 

receipt  embodies  a  contract, — as,  for  instance,  where  it  pre- 
scribes the  manner  in  which  the  money  is  to  be  appropriated, 
— it  is  not  liable  to  be  varied  by  parol  evidence;  n  though  a 
subsequent  parol  agreement,  superseding  that  shown  by  the 
receipt,  may  be  proved.12  When  an  attorney  gives  a  general 
receipt  for  the  evidence  of  a  debt  then  due,  it  is  presumed 
that  he  received  it  as  attorney,  for  collection;  and  the  burden 
is  on  him  to  show  that  he  received  it  specially  and  for  some 
other  purposes.13  Notwithstanding  writings  between  the 
parties  in  which  the  transaction  appears  as  an  assignment 
from  plaintiff  to  defendant,  or  a  conveyance  showing  a  sale 
from  defendant  to  plaintiff,  parol  evidence  is  competent  to 
show  that  their  relation  was  that  of  principal  and  agent, 
and,  therefore,  that  the  defendant  is  accountable  for  the 
property  or  transaction.  The  legal  effect  of  the  instrument 
as  between  the  parties  thereto  is  not  varied  by  this 
proof,  but  only  the  accountability  of  defendant.14  And 
where  plaintiff  relies  on  defendant's  conveyance  or  bill  of 
sale  to  prove  a  sale  by  him,  the  consideration  named,  though 
prima  facie  evidence  in  plaintiff's  favor,  is  not  conclusive, 
but  parol  evidence  is  competent  to  vary  it.15  Partners  may 
be  held  on  their  agreement  to  account  and  pay  over,  al- 
though one  had  withdrawn  before  the  sales,  and  the  moneys 
were  received  by  the  other  only.16  On  an  allegation  that 
money  was  received  by  his  agent,  plaintiff  may  recover  on 
proof  that  he  received  property  of  substantial  pecuniary 
value,17  or  notes  which  were  good  and  collectible,18  and  by 
his  transactions  he  released  the  debtor  and  deprived  his 

11  Wood   v.   Whiting,   21    Barb.  18  Briggs  v.  Briggs,  15  N.  Y.  471. 

190, 197.  Compare  Ayrault  v.   Chamberlin, 

12Egleston  v.  Knickerbocker,  6  26  Barb.  83;  and  see  chapter  on 

Barb.  458.  PAETNERS;    and    see    Andrews    v. 

13  Smedes  v.  Elmendorf ,  3  Johns.  Jones,  10  Ala.  460. 

185.  "Beardsley  v.  Root,  11  Johns. 

»  Richards  v.  Millard,  56  N.  Y.  464. 

574,  s.  c.  (below,  1  Supm.  Ct.  (T.  "  Allen  .  v.    Brown,    44    N.    Y. 

&  C.)  247.  228,  affi'g  51  Barb.  86,  and  cases 

15  Mains  v.  Haight,  14  Barb.  76.  cited. 


DEFENDANT   TO    PLAINTIFF'S   USE  751 

principal  of  all  remedy  except  against  himself.19  Profits 
made  by  an  agent  in  his  employment  belong  absolutely  to 
his  principal,  and  he  may  recover  them  as  money  received.20 
Refusal  of  an  agent,  after  reasonable  time,  to  account  for 
goods  delivered  to  him  for  sale  raises  the  presumption  that 
he  has  sold  them  and  has  the  proceeds;  21  and  the  invoice 
which  was  delivered  to  him,  and  is  unexplained  by  him, 
is  evidence  that  all  the  articles  named  in  it  came  to  his 
possession,  and  raises  a  presumption  against  him  that  he 
sold  them  at  least  for  as  much  as  the  invoice  prices.22  The 
source  of  the  money  received,  and  circumstances  of  its  re- 
ceipt, not  being  within  plaintiffs  knowledge,  he  is  not  held 
to  strictness  of  allegation  and  proof  in  that  respect.23  In 
cases  of  long  continued  fraudulent  embezzlement  or  misap- 
propriation by  one  who  was  exclusively  plaintiff's  agent, 
if  there  is  sufficient  evidence  of  the  mam  fact  to  go  to  the 
jury,  evidence  of  his  previous  insolvency,  and  contempora- 
neous unexplained  acquisition  of  large  property,  is  relevant ; 
and  his  declarations  concerning  his  property  and  business 
transactions,  made  to  third  persons,  in  the  absence  of  the 
plaintiff  or  his  agents,  are  inadmissible  to  rebut  such  evi- 
dence.24 To  show  the  intentional  character  of  false  entries 
and  the  like,  evidence  of  other  such  acts  by  him  (within 
reasonable  limits  of  time),  the  errors  all  being  in  his  own 
favor,  is  competent  to  explain  motive  and  intent.25 

10.  Demand  and  Notice.26 
Demand  may  be  inf erred  by  the  jury  from  notice  of  the 

19  Same  cases.  2S  Regina  v.  Richardson,  2  F.  & 

20  Morison  v.  Thompson,  L.  R.      F.  343. 

9  Q.  B.  480.  *  "There    is     considerable    di- 

21  Hunter  v.  Welch,  1  Stark.  224.  versity  of  opinion  as  to  the  neces- 

22  Field    v.    Moulton,    2    Wash,  sity  of  a  demand  as  a  condition 
C.  C.  155.  precedent  to  an  action  for  money 

23  See  Hall  v.  Morrison,  3  Bosw.  had  and  received.     The  doctrine 
(N.  Y.)   520,  527.  is  broadly  stated  in  some  decisions 

24  Boston   &   W.   R.   R.   Co.   v.  that  the  commencement  of  suit  is 
Dana,  1  Gray,  83,  101,  103.  a  sufficient  demand.     This  state- 


752 


ACTIONS   FOR   MONEY   RECEIVED    BY 


mistake  or  other  ground  of  the  demand,  and  an  informal  re- 
quest to  rectify  it.27  Demand  or  instructions  to  remit  will 
not  be  presumed  against  even  a  foreign  factor,  merely  from 
lapse  of  time.28  Where  plaintiff  proves  a  demand  and  re- 
fusal, defendant  has  a  right  to  prove  the  reasons  which  were 
given  by  him  at  the  time.29 

11.  Defendant's  Evidence. 

Under  a  general  denial  of  the  contract  alleged,  defendant 
may  prove  that  the  contract  contained  material  provisions 
under  which  the  money  was  received,  other  than  those 
alleged,30  or  that  there  was  a  departure  from  the  contract 
by  plaintiff's  request,  and  the  money  was  paid  accordingly.31 


ment,  however,  is  inaccurate,  as 
it  is  obvious  that  under  some  cir- 
cumstances a  demand  is  neces- 
sary." 27Cyc.871&872.  "Where 
one  has  wrongfully  obtained  the 
money  of  another  by  duress,  or  has 
by  fraudulent  means  induced  an- 
other to  pay  him  money,  no  de- 
mand is  necessary  as  a  prerequisite 
to  an  action  for  money  had  and 
received."  Likewise  for  mistake, 
27  Cyc.  873. 

Whether  demand  is  necessary 
in  case  of  mistake,  etc.,  is  not 
agreed.  The  better  opinion  is 
that  where  defendant  is  not  a 
wrong-doer,  or  violating  his  agree- 
ment (14  N.  .Y.  492),  in  retaining 
the  money,  demand,  or  at  least 
notice  of  mistake,  given  before 
suit,  must  be  proved.  Moak's 
Van  Santv.  PI.  379;  Mayor,  etc., 
of  N.  Y.  v.  Erben,  3  Abb.  Ct.  App. 
Dec.  255,  affi'g  10  Bosw.  189. 
Contra,  Calais  v.  Whidden,  64 
Me.  249;  Utica  Bank  v.  Van  Gieson, 
18  Johns.  485.  Unless  defendant 
has  put  it  out  of  his  own  power  to 


comply.  The  reasonableness  of 
the  rule  is  seen  in  the  fact  that, 
while  the  cause  of  action  is  in  the 
nature  of  an  equitable  one,  the 
form  of  the  action  is  legal,  and 
costs  are  not  in  the  discretion  of 
the  court. 

»Muir  v.  Rand,  2  Ind.  291. 
Compare  Walsh  v.  Ostrander,  22 
Wend.  178,  and  2  Abb.  N.  Y.  Dig. 
2d  ed.  642-644. 

"Where  there  is  nothing  to  be- 
done  by  the  plaintiff  to  place  the 
defendant  in  statu  quo,  the  action 
for  money  had  and  received  is  in 
itself  a  rescission  as  well  as  a  de- 
mand." Either  v.  Packard,  115 
Me.  306,  98  Atl.  Rep.  929. 

^Haldent'.  Crafts,  4  E.  D.  Smith, 
490,  s.  c.  as  Walden  v.  Crafts, 
2  Abb.  Pr.  301. 

29  Bennett  v.  Burch,  1  Den.  141. 

30  Marsh   v.   Dodge,   66   N.   Y. 
533, rev'g  4  Hun,  278,  s.  c.,  6  Supm. 
Ct.  (T.  &  C.)  568. 

31  Gwynn  v.  Globe  Locom.  Works, 
5  Allen,  317. 

The  burden  is  on  the  defendants, 


DEFENDANT   TO    PLAINTIFF'S   USE  753 

Plaintiff's  parol  evidence  to  show  a  rescission  by  subsequent 
consent  may  be  met  by  parol  evidence  that,  by  a  still  later 
consent,  the  contract  (although  under  seal)  was  reinstated.32 
An  agent,  sued  by  his  principal,  may  testify  to  his  own 
opinion  as  to  the  necessity  of  the  exercise  of  a  discretion 
which  was  vested  in  him  for  the  purpose  of  the  transactions 
on  which  he  is  called  to  account,33  and  to  his  good  faith  in 
its  exercise.34  The  res  gestce  are  competent  for  the  same  pur- 
pose.35 He  may  testify  generally  that  he  paid  over  all  he  had 
received,  and  may  testify  to  what  allowances  were  made  on 
settlements  which  are  in  evidence,  although  there  were 
written  receipts.36  Evidence  that  the  usual  course  of  dealing 
was  to  make  daily  returns  and  payments,  without  passing 
any  vouchers,  raises  a  presumption  of  law  that  defendant 
had  fully  accounted,  and  throws  on  plaintiff  the  burden  of 
proving  the  contrary.37  If  defendant  relies  on  plaintiff's 
consent  that  he  retain  to  his  own  use  moneys  received,  the 
evidence  of  such  consent  should  be  clear  and  satisfactory.38 

if  they  have  relieved   themselves  "  France  v.  McElhome,  1  Lans. 

of  liability  for  the  money  after  it  7. 

passed  into  their  hands,  to  prove  "See  38  N.  Y.  281,  and  cases 

that  fact.    Andrews  v.  Moller,  37  cited. 

Hun,  480.  35See  paragraph   15  of  chapter 

Where   the   defendant   received  XII,   and  chapter  VI,   paragraph 

the  money  in  connection  with  a  9,  and  Hudson  v.  Crow,  26   Ala. 

joint  business  venture  hi  which  he  515,  522. 

was  engaged  with  the  plaintiff,  he  M  France  v.  McElhone,  1  Lan.s. 
may  show   that   the  money  was  7.    See,  however,  chapters  on  Ac- 
spent  in  connection  with  the  busi-  COUNTS  STATED  and  PAYMENT. 
ness.     Fisher   v.   Sweet,   67   Cal.  37  Evans  v.  Birch,  3  Campb.  10. 
228, 7  Pac.  Rep-.  657.  38  Howe  v.  Savory,  49  Barb.  403, 

Where    the    defendant    admits  51  N.  Y.  631. 

having  received  the  money  he  must  If  the  defendant  contends  that 

prove  his  affirmative  defense  by  a  he  was  to  retain  the  money  in  pajr- 

preponderance  of  evidence.     Dil-  ment  of  services  rendered  by  him 

Ion  0.   Pinch,  110  Mich.   149,  67  it  is  competent  to  show  what  those 

N.  W.  Rep.  1113;  Logan  v.  Freerks,  services   were  as  bearing  on  the 

14   N.   D.  127,  103  N.  W.   Rep.  question  whether  it  was  probable 

426.  that  the  plaintiff  made  such  ar- 

32  Flynn  v.  McKeon,  6  Duer,  203.  rangement.     Barney  v.  Fuller,  15 


754  ACTIONS   FOR   MONEY   RECEIVED   BY 

Defendant  cannot  exonerate  himself  by  proving  that  he 
received  the  money  merely  as  agent  for  another,39  unless  the 
agency  was  disclosed;  ^  nor  even  then  if  he  was  a  wrongdoer 
in  receiving,41  or  paid  over  hi  fraud  of  plaintiff's  right.  De- 
fendant's agency  for  a  third  person  being  shown,  it  will  not 
be  presumed  that  the  money  had  been  paid  over  to  the  prin- 
cipal, unless  from  the  nature  of  the  business,  or  the  usual 
course  of  transacting  it,  it  would  be  expected  that  payment 
would  be  made  to  the  principal  and  not  to  the  agent.42  To 
show  good  faith  hi  paying  over,  the  res  gestce  of  the  payment 
are  competent,43  as  well  as  the  testimony  of  the  defendant.44 

In  respect  to  illegal  consideration,  the  law  recognizes  a 
distinction  between  enforcing  an  illegal  contract  and  assert- 
ing title  to  money  which  has  arisen  from  it.45  One  who  re- 
ceived money  hi  trust  to  pay  it  to  plaintiff  hi  discharge  of  an 
alleged  indebtedness  of  the  payer,  cannot  resist  the  action 
on  the  ground  that  the  contract  between  plaintiff  and  the 
payer,  out  of  which  the  alleged  indebtedness  arose,  was 
illegal.  The  debtor  waiving  the  objection,  the  depositary 
cannot  avail  himself  of  it.46  The  fact  that  the  defendant 

N.  Y.  Supp.  694,  61   Hun,   618,  verbal  order  of  his  principal  not  to 

aff'd  133  N.  Y.  605,  30  N.  E.  Rep.  pay  the  money.    Thome  v.  Peck, 

1007.  13  Johns.  315. 

39  And   a   custom   of   banks   to  43  See,   for   instance,    Knowlton 
collect  money  as  agents,  without  v.  Clark,  25  Ind.  395. 
disclosing  their  agency,  is  insuffi-  "See     paragraph     11    of     this 
cient  to  show  that  a  bank,  in  col-  chapter. 

lecting,    acted    as    agent.      Canal  Where  a  patient  sues  a  physician 

Bank  v.  Bank  of  Albany,  1  Hill,  287.  for  money  paid   him   for   useless 

40  See  Barbour  v.   Litchfield,  4  services  he  cannot  avail  himself  of 
Abb.  Ct.  App.  Dec.  655,  and  cases  the    statute    making    communica- 
cited;  and  chapter  on  GOODS  SOLD.  tions  between  physician  and  patient 

41  Tugman  v.  Hopkins,  4  M.  &  privileged.    Bernard  v.  Dr.  Nelson 
G.  389,  401.  Co.,  123  Minn.  468, 143  N.  W.  Rep. 

42  Hathaway   v.    Burr,    21    Me.  1133. 

567,  572.     In  an  action   against  « Brooks  v.  Martin,  2  Wall.  81. 

an  agent  for  money  alleged  to  be  «  Merritt  v.  Millard,  3  Abb.  Ct. 

due    to    plaintiff— HeW,   that  de-  App.  Dec.  291,  s.  c.,  4  Keyes,  208, 

fendant  might  give  in  evidence  a  and  cases  cited,  affi'g  10  Bosw.  309. 


DEFENDANT   TO    PLAINTIFF'S   USE 


755 


himself  was  the  agent  by  whom  the  illegal  agreement  was 
made,  does  not  alter  the  case.  It  is  not  ignorance  on  his 
part  of  such  illegality,  but  the  absence  of  any  legal  connec- 
tion between  the  new  promise  of  defendant  to  deliver  such 
money  as  directed  and  the  original  contract,  which  precludes 
him  from  setting  up  such  a  defense.47  But  money  received 
by  defendant  under  an  illegal  contract  to  which  plaintiff 
was  a  party,  cannot  be  recovered  if  the  action  requires  the 
enforcement  by  the  court  of  any  unexecuted  provision  of  the 
contract.48 


47  Id. ;  and  see  Wilkinson  v. 
Tousley,  16  Minn.  299,  s.  c.,  10 
Am.  Rep.  139.  Character  is  not  in 
issue  on  the  question  whether  a 
debt  was  for  money  lost  at  play. 
Thompson  v.  Brown,  4  Wall.  471. 

"Woodworth  v.  Bennett,  43 
N.  Y.  273,  and  cases  cited,  rev'g 
53  Barb.  361.  Compare  Knowlton 
v.  Congress  Spring  Co.,  57  N.  Y. 
518.  Again,  contra,  5  Reporter, 
166. 


One  who  had  located  a  stand 
in  front  of  the  defendants'  prem- 
ises but  within  the  'stoop  line' 
was  not  allowed  to  recover  rent 
paid  for  such  location  under  a 
claim  that  a  city  ordinance  made 
the  payment  of  such  rent  illegal, 
since  the  parties  stood  in  pari 
delicto  before  the  court.  Barrett 
v.  Smith,  37  Misc.  825,  76  N.  Y. 
Supp.  907. 


CHAPTER  XVI 


ACTIONS  ARISING  OX  SALES  OF  PERSONAL  PROPERTY 


I.  ACTIONS    FOR    THE    PRICE    OF 
GOODS,  &c. 

1.  Grounds  of  actions. 

2.  Plaintiff's  title. 

3.  License  to  sell. 

4.  Ordinary  sale  by  delivery. 

5.  Evidence  of  Express  agree- 

ment. 

6.  —  made  by  letter  or  tele- 

gram. 

7.  Memorandum  under  statute 

of  frauds. 

8.  Explaining  writing  by  parol. 

9.  Proof  of  usage. 

10.  Plaintiff  real  party  in  inter- 

est. 

11.  Purchase     by     defendant's 

agent. 

12.  Defendant  undisclosed  prin- 

cipal. 

13.  —  liable,  though  acting  as 

agent. 

14.  Assumption  of  third  person's 

order. 

15.  Question  to  whom  credit  was 

given. 

16.  Identifying  the  thing  agreed 

for.  . 

17.  Quality  and  description. 

18.  Quantity. 

19-23.  Price  and  value. 

24.  Time    for    performance    or 

payment. 

25.  Conditions   and   warranties. 

26.  Options. 

27.  Subsequent  modifications. 

756 


28-30.  Delivery,  tender  or  offer. 

31.  Packing  and  freight. 

32.  The  passing  of  the  title. 

33.  Delivery  to  satisfy  statute. 

34.  Part  payment. 

35-41.  Documents,    memoranda 
and  accounts. 

42.  Admissions  and  promises  to 

pay. 

43.  Auction  sales. 

44.  Sales  by  broker. 

45-47.  Demand,    interest,    non- 
payment. 

II.  DEFENDANT'S  CASE. 

48.  Denial  of  contract. 

49.  Set-off     against     plaintiff's 

agent. 

50.  Denial  of  agency  binding  de- 

fendant. 

51.  Plaintiff   an    agent    for    de- 

fendant. 

52.  Defendant    not    the    buyer. 

but  agent  for  another. 

53.  By  bidding  at  auction. 

54.  Rescission. 

55.  Recoupment. 

56.  Defects  in  title,  quantity  or 

quality. 

57.  Deceit. 

58.  Inconsistent  remedies. 

59.  Wager  contract. 

III.  ACTIONS    AGAINST   BUYER    FOR 

NOT    ACCEPTING. 

60.  General  principles. 

61.  Readiness  to  perform. 


ACTIONS   FOR   PRICE   OF   GOODS,    ETC. 


757 


IV.  ACTIONS  AGAINST  SELLER   FOR 

NON-DELIVERY. 

62.  General  principles. 

63.  Orders  and  acceptance. 

64.  Readiness  to  perform. 

65.  Object  of  buying. 

66.  Defendant's    case — Only    an 

agent. 

67.  Intermediate  destruction  of 

the  thing  sold. 

V.  ACTIONS  AND  DEFENSES  ARISING 

ON   WARRANTY. 

68.  Grounds  of  action  for  breach 

of  warranty. 

69.  Pleading. 

70.  Warranties  of  things  in  ac- 

tion. 

71.  Warranty  of  title. 

72.  Express  warranty. 

73.  Agent's    authority    to    war- 

rant. 


74.  Implied    warranty    on    ex- 

ecuted sale. 

75.  —  executory  sale. 

76.  Sale  by  sample. 

77.  Presumption  of  knowledge. 

78.  Parol  warranty  on  written 

sale. 

79.  Parol  evidence  to  explain. 

80.  Variances   in    contract    and 

breach. 

81.  Breach. 

82.  Opinions  of  witnesses. 

83.  Admissions      and      declara- 

tions. 

84.  Omission  to  return  the  arti- 

cle. 

85.  Damages. 

86.  Disproof    of    implied    war- 

ranty. 

87.  Buyer's  knowledge  of  defect. 

88.  Seller's  good  faith. 

89.  Former  adjudication. 


1.  ACTIONS  FOR  THE  PRICE  OF  GOODS,  &c.* 
1.  Grounds  of  Action. 

The  characteristic  facts  constituting  the  cause  of  action, 
are  that  plaintiff,  at  the  defendant's  request,  sold  and  de- 
livered to  him  personal  property  for  which  he  owes  the  price 
or  value.49  These  facts  are  implied  in  and  admissible  under 

*  The  Uniform  Sales  Act,  the  original  draft  of  which  was  prepared 
by  Professor  Williston,  has  become  the  law  in  a  number  of  states.  It 
was  adopted  in  New  York  in  1911,  as  part  of  the  Personal  Property 
Law.  Many  noteworthy  changes  have  been  effected  by  the  Act,  some 
of  them  involving  fundamental  rules  of  evidence.  In  order  to  make  the 
chapter  conform  as  far  as  possible  to  the  provisions  of  the  Act,  parts  of 
the  text  have  been  rewritten  and  many  recent  cases  construing  the 
statute  have  been  cited  in  the  notes. 


49  Allen  v.  Patterson,  7  N.  Y.  (3 
Seld.)  476;  Scoggin  v.  Morrilton, 
124  Ark.  585, 187  S.  W.  Rep.  445. 

A  complaint,  alleging  that  de- 
fendant gave  a  written  order  for 


certain  books,  which  order  was 
made  a  part  of  the  complaint, 
in  pursuance  of  which  plaintiff 
shipped  the  books  and  defendant 
accepted  and  retained  the  same, 


758 


THE    FACT   OF   SALE 


a  general  allegation  that  defendant  is  indebted  to  plaintiffs 
in  the  sum  of,  etc.,  for  goods  sold  and  delivered  to  defendant 
by  plaintiffs  at  a  tune  and  place  named,  on  defendant's  re- 
quest.50 

The  agreement  of  sale  is  of  the  gist  of  the  action.51  Ev- 
idence of  an  agreement  which  is  to  be  regarded  as  one  for 
the  manufacture  of  goods  for  defendant  rather  than  for  a 
sale  to  him,  is  not  an  entire  failure  of  proof;  and  the  variance 
may  be  disregarded,52  unless  defendant  is  surprised  to  his 


that  plaintiff  has  performed  his 
contract  and  that  a  certain  balance 
is  due,  states  a  cause  of  action. 
King  v.  Edward  Thompson  Co., 
56  Ind.  App.  274,  104  N.  E.  Rep. 
106. 

50  Id.    As  to  the  seller's  election 
of  remedies,   see  Dustan  v.   Mc- 
Ahdrew,  44   N.  Y.   72,   affi'g   10 
Bosw.  130. 

"When  a  seller  of  goods  has  per- 
formed in  full,  his  part  of  the  con- 
tract of  sale  and  has  placed  the 
purchaser  in  possession  of  the 
goods,  and  nothing  remains  to  be 
done  by  either  of  the  parties  to  the 
contract  but  the  payment  by  the 
purchaser  to  the  seller  of  the  price 
of  the  goods,  then  the  seller  may 
recover  of  the  purchaser  the  pur- 
chase price  of  the  goods  under  a 
common  count  for  goods  sold  and 
delivered."  Vinegar  Bend  Lumber 
Co.  v.  Soule  Steam  Feed  Works, 
182  Ala.  146,  62  So.  Rep.  279. 

A  complaint  which  alleges 
merely  that  "plaintiff  sold  and  de- 
fendant purchased"  certain  goods 
for  a  certain  price,  and  that  at  the 
time  of  sale  plaintiff  was  the  owner, 
has  been  held  sufficient.  Ballard 
v.  Friedeberg,  164  N.  Y.  Supp.  912. 

51  On  a  voluntary  delivery  to  de- 


fendant, in  payment  of  his  de- 
mand against  a  stranger  to  the 
transaction,  the  deliverer  cannot 
receive  the  value  from  the  deliveree, 
on  the  ground  that  the  delivery 
was  made  pursuant  to  a  parol 
promise  void  under  the  statute  of 
frauds.  Fowler  v.  Moller,  10 
Bosw.  374. 

Where  the  answer  puts  in  issue 
all  of  the  allegations  of  the  com- 
plaint, it  is  incumbent  upon  the 
plaintiff  to  prove,  (1)  that  he 
furnished  or  sold  the  goods  to  the 
defendant  at  his  request;  (2)  the 
nature  or  description  of  the  same; 
(3)  the  agreed  price;  (4)  in  the 
absence  of  an  agreement  as  to  price, 
the  reasonable  value  of  the  goods. 
Quaker  City  Cut  Glass  Co.  v. 
Webber,  156  Iowa,  678,  137  N.  W. 
Rep.  925;  Starke  v.  Stewart,  33  N. 
D.  359,  157  N.  W.  Rep.  302,  304. 

Where  the  plaintiff  fails  to  show 
either  an  agreement  as  to  the 
price  of  the  goods,  or  their  reason- 
able value  in  the  absence  of  an 
agreement,  he  has  failed  to  es- 
tablish a  foundation  for  his  suit. 
Vinegar  Bend  Lumber  Co.  v. 
Howard,  Hooks  &  Henson,  186 
Ala.  451,  65  So.  Rep.  172. 

52  Union  Rubber  Co.  i\  Tomlin- 


ACTIONS    FOR   PRICE    OF   GOODS,    ETC. 


759 


prejudice.53  On  the  other  hand,  if  the  facts  on  which  the 
law  raises  an  implied  promise  to  pay  are  directly  stated,  an 
allegation  of  such  promise  is  not  necessary.54  Under  the 
the  new  procedure,55  as  well  as  at  common  law,56  where 
plaintiff  may  waive  his  right  of  action  for  damages  for  the 
tortious  conversion  of  personal  property,  and  recover  in  as- 
sumpsit,  he  may  prove  the  facts  under  a  complaint  for  goods 
sold  and  delivered.57  If  the  evidence  supports  allegations  in 
the  complaint  of  a  cause  of  action  on  contract,  the  failure  to 
prove  superfluous  allegations  of  fraud,  will  not  prevent  a  re- 
covery; M  but  if  the  fraud  is  alleged  as  the  gist  of  the  action, 
so  that,  on  judgment  against  defendant,  execution  would  go 
against  his  person,  a  failure  to  prove  the  fraud  is  fatal,59  unless 
an  amendment  is  allowed,  or  a  waiver  of  the  tort  put  on  record. 
The  delivery,  under  an  agreement  alleged  as  a  sale  and 


son,  1  E.  D.  Smith,  364.    Compare 
Prince  v.  Down,  2  Id.  525. 

58  The  chief  importance  of  the 
distinction  is  in  the  fact  that  on  a 
contract  for  manufacture,  &c., 
compliance  with  the  statute  of 
frauds  need  not  be  shown. 

64  Farron  v.  Sherwood,  17  N.  Y. 
227. 

65  Weigand  v.  Sichel,  4  Abb.  Ct. 
App.  Dec.  595;  Abbott  v.  Blossom, 
66  Barb.  353;  Harpending  v.  Shoe- 
maker, 37  Id.  270;  see  also  Pom- 
eroy  on  Rem.,  §  567,  &c.;  Link  v. 
Vaughn,  17  Mo.  585;  Robinson  v. 
Rice,  20  Id.  229. 

66  See  Osborn  v.  Bell,  5  Den.  370; 
Hinds  v.  Tweddle,  7  How.  Pr.  278, 
and  cases  cited. 

57  To  the  contrary  where  there 
was  an  express  contract  to  account. 
Moffat  v.  Wood,  Seld.  Notes,  No. 
5,  14;  but  see  Roth  v.  Palmer,  27 
Barb.  652. 

58  Graves  v.  Waite,  59  N.  Y.  156; 
Ledwich  v.   McKim,   53   Id.  307. 


See  Ames  Portable  Silo  &  Lumber 
Co.  v.  GUI  (Tex.  Civ.  App.),  190 
S.  W.  Rep.  1130. 

89  See  Ross  v.  Mather,  51  N.  Y. 
108;  De  Graw  v.  Elmore,  50  Id.  1. 
The  reason  of  the  rule  is,  that  on 
the  one  hand,  if  plaintiff  alleges 
and  proves  facts  raising  an  implied 
promise  or  an  express  contract, 
the  tortious  conduct  of  defendant 
ought  not  to  exonerate  him.  On 
the  other  hand,  if  the  complaint 
states  a  tort  as  the  cause  of  action, 
defendant  may  be  precluded  from 
pleading  counterclaims,  and  will  be 
liable  to  imprisonment;  hence,  a 
failure  to  prove  the  tort  is  not  a 
mere  variance.  If  the  frame  of  the 
complaint  is  such  as  to  present 
contract  as  the  cause  of  action,  un- 
proved allegations  of  tort  are  mere 
variance,  to  be  disregarded,  unless 
defendant  has  been  surprised  and 
prejudiced.  Contra,  now  by  N.  Y. 
Code  Civ.  Pro.,  §  529. 


760  THE    FACT   OF    SALE 

delivery,  or  its  equivalent  so  far  as  plaintiff's  duty  is  con- 
cerned, is  essential  to  the  theory  of  the  action.60  But  if, 
where  proof  of  delivery  fails,  the  facts  in  evidence  would 
sustain  an  action  for  damages  for  defendant's  refusal  to  com- 
plete his  bargain,  the  case  is  one  of  variance  merely,  not  of 
entire  failure  of  proof,  and  the  court  or  referee  may  allow 
an  amendment.61  So,  under  an  allegation  that  the  sale  and 
delivery  was  to  defendant,  evidence  of  a  sale  to  defendant 
on  his  credit,  and  of  delivery  to  a  third  person  at  his  request, 
is  not  an  entire  failure  of  proof,  but  only  a  question  of  va- 
riance, even  though  the  sale  was  for  the  benefit  of  such  third 
person.62  Failure  to  prove  a  superfluous  allegation  of  prom- 
ise to  indemnify,  etc.,  may  be  disregarded.63 

For  the  greater  convenience  of  the  reader  we  will  consider, 
first,  the  rules  applicable  in  the  more  common  action  for 
price,  although  they  are  to  some  extent  applicable  also  in 
actions  for  refusal  to  deliver,  etc.,  and,  then,  those  peculiar 
to  special  and  executory  contracts,  and  to  warranties. 

2.  Plaintiff's  Title  to  the  Goods,  &c. 

The  usual  allegation  that  plaintiffs  sold  and  delivered 
goods,  etc.,  sufficiently  imports  that  the  goods  belonged  to 
them.64  Evidence  of  title  is  not  usually  required,65  and  when 

60  Evans  v.  Harris,  19  Barb.  416;      Cluer,   15  Wend.    189,  and  cases 
Catlin  v.  Tobias,  26  N.  Y.  217;      cited     (BRONSON,    J.);     and     see 
Roaring  Fork  Potato  Growers  v.      Monroe  v.  Hoff,  5  Den.  360. 

C.  C.  demons  Produce  Co.,  193  63  Hay  v.  Hall,  28  Barb.  378. 

Mo.  App.  653,  187  S.  W.  Rep.  617.  ««  Phillips  v.   Bartlett,  9  Bosw. 

Goods  sold  at  a  particular  place,  678.     And  if  they  were  partners, 

are  deliverable  thereat,  where  the  an  allegation  of  partnership  is  not 

contract  is  silent  as  to  the  place  of  necessary.     Id.     Under  an  allega- 

delivery.     Robert  McLane  Co.  v.  tion    that    property    belonged    to 

Swernemann   &   Schkade,    189   S.  plaintiff,   proof  that  it  was   con- 

W.  Rep.  (Tex.  Civ.  App.)  282.  signed  to  him  as  factor,  he  being 

61  Dunnigan    v.    Crummey,    44  chargeable  with  its  value,  whether 
Barb.  528,  and  cases  cited.  sold,  lost,  or  destroyed — Held  not 

62  Rogers  v.  Verona,  1  Bosw.  417.  a   material    variance.      Gorum    v. 
Compare  Cowdin  v.  Gottgetreu,  55  Carey,  1  Abb.  Pr.  285. 

N.  Y.  650.  At  common  law  not  65  Compare  Gilmore  v.  Wilbur, 
even  a  variance.  Porter  v.  Me-  18  Pick.  517. 


ACTIONS    FOR    PRICE    OF   GOODS,    ETC. 


761 


required,  unless  title  is  specially  put  in  issue,  very  slight 
evidence  is  enough,  and  if  plaintiff  proves  sale  and  delivery,66 
he  is  not  bound  to  give  further  evidence  of  his  title  than  the 
fact  that  he  had  actual  possession  and  control.67  If  one  pur- 
chases a  doubtful  right,  he  concedes  the  right,  and  cannot 
afterward  dispute  it  in  an  action  for  the  price.68  On  the 
question  of  title,  evidence  of  the  plaintiff's  declarations  of 
ownership,  made  while  in  possession  and  before  sale,  and 
explanatory  of  the  existing  possession,  is  competent  in  his 
own  favor,  and  if  clear,  they  are  prima  fade  evidence  of  his 
title.69  The  admissions  and  declarations  of  one  under  whom 
plaintiff  claims,  and  who  is  deceased,  if  against  his  interest 
when  made,  are  competent  in  support  of  plaintiff's  title.70 


Ability  to  give  title  at  the  time 
set  for  delivery  is  all  that  is  es- 
sential. Consolidated  Nat.  Bank  v. 
Giroux,  18  Ariz.  253,  158  Pac. 
Rep.  451. 

66  Compare  Cobb  v.  Williams,  7 
Johns.    24;    Marston   v.    Rue,   92 
Wash.  129,  159  Pac.  Rep.  111. 

Where  title  is  directly  in  issue, 
however,  and  defendant's  evi- 
dence shows  or  tends  to  show  that 
plaintiff  has  no  title,  the  latter, 
in  order  to  recover,  must  over- 
come the  effect  of  defendant's  evi- 
dence. Marcus  v.  Mayer,  147  N.  Y. 
Supp.  973. 

67  See  Gourd  v.  Healy,  165  App. 
Div.  288,  150  N.  Y.  Supp.  1006; 
Fitzpatrick    v.    Caplin,    4    E.    D. 
Smith,    365;    Reilly   v.    Cook,    13 
Abb.  Pr.  255,  s.  c.,  22  How.  Pr.  93. 

68  Compare  Costar  v.  Brush,  25 
Wend.  628. 

In  an  action  for  the  purchase 
price  of  certain  lumber,  it  appeared 
that  the  plaintiff  had  previously 
obtained  the  lumber  from  a  lumber 
company.  The  defense  was  that 


plaintiff  had  no  title  to  the  lumber 
in  question  because  he  had  pur- 
chased it  from  the  company  on 
credit  induced  by  false  represen- 
tations. The  evidence,  however, 
established  that  the  sale  of  the 
lumber  to  the  plaintiff  had  been 
for  cash  but  that  he  had  not  paid 
therefor.  The  court  held  that  in 
the  absence  of  proof  that  the 
lumber  was  taken  by  the  plaintiff 
without  the  company's  consent, 
or  that  the  consent,  if  given,  was 
induced  by  fraudulent  representa- 
tions, plaintiff  was  entitled  to  re- 
cover. McNabb  v.  Whissel,  75 
App.  Div.  626,  78  N.  Y.  Supp.  269. 

69  Roebke  v.  Andrews,  26  Wis. 
311.      Compare    Tilson    v.    Ter- 
williger,  56  N.  Y.  273. 

70  Thus  in  a  broker's  action,  the 
declarations  of  the  owner  of  the 
goods  that  he  had  sold  them,  and 
received  the  price  from  the  broker 
as  guarantor,  are,  after  the  death 
of  the  declarant,  competent  against 
the  buyer,  to  show  that  the  right 
of  action  was  transferred  from  the 


7(>2  THE    FACT   OF   SALE 

3.  License  to  Sell. 

Plaintiff  will  be  presumed  to  have  a  license,  if  one  be  nec- 
essary to  render  the  sale  lawful.71  But  if  the  lack  of  one  is 
shown,  there  is  no  presumption  that  one  would  have  been 
taken  out  in  time.72 

4.  Ordinary  Sale  by  Delivery. 

The  agreement,  price  and  delivery  may  all  be  proved  by 
uncontradicted  evidence  showing  an  account  rendered  by 
plaintiff  to  defendant  on  the  face  of  which  he  is  charged  as 
the  buyer,  and  that  he  unqualifiedly  admitted  the  justice 
of  the  demand.73  Where  the  admission  is  susceptible  of 
being  understood  as  referring  only  to  the  correctness 
of  items  in  description  or  price,  other  evidence  of  de- 
livery of  the  goods  must  be  adduced.  Admissions  as 
proof  of  either  separate  fact  will  be  further  considered 
below.  Under  an  allegation  of  sale  and  delivery  to  or  by 
a  party,  evidence  of  the  act  on  the  part  of  his  agent  is 
admissible.74 

5.  Evidence  of  Express  Agreement. 

A  witness  testifying  to  a  sale  can  state  it  in  general  terms, 

declarant  to  the  broker.  White  v.  73  See  Power  v.  Root,  3  E.  D. 

Chouteau,  10  Barb.  202,  s.  P.,  in  Smith,  70;  Jaques  P.  Elmore,  7 

a  further  decision,  1  E.  D.  Smith,  Hun,  675;  N.  Y.  Ice  Co.  v.  Parker, 

493.  21  How.  Pr.  302;  Griffin  v.  Keith, 

"Smith  v.  Joyce,  12  Barb.  21;  1  Hilt.  58;  Webb  v.  Chambers,  3 

and  see  McPherson  v,  Cheadell,  Ired.  (No.  Car.)  374.  This  is  the 

24  Wend.  15;  Thompson  v.  Sayre,  better  opinion  (see  Pow.  Ev.  226), 

1  Den.  175.  although  other  proof  of  delivery 

72  See  Kane  v.  Johnston,  9  Bosw.  has  been  sometimes  required  at 

154.  circuit. 

The  plaintiff  must  prove  posses-  74  Sherman  v.  N.  Y.  Central  R. 
sion  of  the  license,  where  the  issue  R.  Co.,  22  Barb.  239.  See  also 
is  raised  by  plea.  Brown  v.  Raisin  Fitch  v.  Metropolitan  Hotel  Sup- 
Fertilizer  Co.,  124  Ala.  221,  26  So.  ply  Co.,  69  X.  Y.  App.  Div.  611, 
Rep.  891.  74  N.  Y.  Supp.  616. 


ACTIONS    FOR    PRICE    OF    GOODS,    ETC. 


763 


subject  of  course  to  cross-examination,75  but  cannot  state 
his  opinion  or  understanding,  as  distinguished  from  his  rec- 
ollection or  impression  of  the  acts  and  conversation  of  the 
parties.76  If  it  appear  by  the  testimony  that  there  was  a 
written  contract,  it  must  be  produced,  or  its  absence  ac- 
counted for,  to  open  the  way  for  parol  evidence  of  its  con- 
tents;77 and  plaintiff  must  prove  performance  of  its  condi- 
tions. A  mere  receipt  for  price,  though  specifying  the  goods 7S 
or  for  the  goods,  though  specifying  the  price,  is  not  the  pri- 
mary evidence  of  the  contract,  such  as  to  render  oral  testi- 
mony secondary;79  nor  is  a  memorandum  of  the  terms  of 


75  A    witness    cognizant   of    the 
fact  can  state  whether  an  agree- 
ment was  made,  without  detailing 
the    circumstances    showing    that 
it  was  made.     Wallis  v.  Randall, 
81  N.  Y.  164,  169;  Sweet  v.  Tuttle, 
14  N.  Y.  465;    Frost  v.  Benedict, 
21  Barb.  247;  Ayrault  v.  Chamber- 
lain, 33  Barb.  229;  R'Ville  Union 
Sem.  ».  McDonald,  34  N.  Y.  379; 
Osborn    v.    Robbins,    36    N.    Y. 
365. 

76  Murray  v.  Bethune,  1  Wend. 
191;  and  see  on  this  distinction,  3 
Abb.  N.  C.  229. 

77  Unless   defendant's   admission 
of  its  contents  is  received  as  pri- 
mary evidence.    Slatterie  v.  Pooley,^ 
6  Mees.  &  W.  664. 

In  the  absence  of  a  plea 
of  non  est  factum,  a  written 
contract  sued  on  is  admissible 
without  proof  of  execution. 
Fulton  v.  Sword  Machine  Co., 
145  Ala.  -331,  40  So.  Rep. 
393. 

See  as  to  method  of  proving 
execution,  when  it  is  necessary, 
by  an  attesting  witness,  Alabama 
Const.  Co.  v.  Continental,  etc., 


Car  Co.,  131  Ga.  365,  62  S.  E. 
Rep.  160. 

Compare  Northrup  v.  Jackson, 
13  Wend.  85.  As  to  destruction 
of  the  instrument,  see  Tayloe  v. 
Riggs,  1  Pet.  591;  Steele  v.  Lord, 
70  N.  Y.  280,  and  cases  cited. 
Items  charged  in  an  account  as 
goods  delivered  on  defendant's 
orders  will  not  be  presumed  to 
have  been  delivered  on  written 
orders.  Smith  v.  Joyce,  12  Barb. 
21.  Where  plaintiff  sets  up  an 
express  agreement  but  fails  to 
establish  it  at  the  trial,  he  may 
move  for  an  amendment  so  as  to 
prove  his  case  on  the  common 
counts.  Mach  Mfg.  Co.  v.  Dono- 
van, 86  X.  J.  L.  327,  91  Atl.  Rep. 
310. 

78  See  Terry  v.  Wheeler,  25  N.  Y. 
520;  but  compare  Bonesteel  v. 
Flack,  41  Barb.  435,  s.  c.,  27  How. 
Pr.  310. 

"Southwick  v.  Hayden,  7  Cow. 
334.  If  the  sale  was  of  a  note  or 
other  written  evidence  of  debt, 
the  rule  does  not  require  the  pro- 
duction of  the  note,  etc.  Lamb  v. 
Moberly,  3  Monr.  (Ky.)  179. 


7(54 


THE    PACT   OF   SALE 


sale,  made  by  one  party,80  or  by  a  witness,81  and  not  com- 
municated to,  or  not  assented  to  by  the  other — as  for  instance 
where  it  was  made  by  the  broker  of  both  merely  for  the  pur- 
pose of  preserving  a  charge  of  his  commissions.82  Evidence 
that  the  buyer,  after  receiving  a  written  statement  of  terms, 
took  possession  of  the  property  without  dissent,  shows  an 
acceptance  of,  and  acquiescence  in  the  terms.83  Where  the 
contract  refers  to  a  written  instrument  not  as  embodying 
the  contract,  but  for  ascertaining  some  of  the  terms  of  the 
contract,  it  is  not  necessary  to  prove  the  execution  of  the 
latter  hi  order  to  admit  it  hi  evidence  in  establishing  the 
contract  sued  on;  but  identifying  it  is  enough.84 

A  contract  for  a  sale  on  fixed  terms  as  to  price  or  other- 
wise, is  admissible  under  a  general  allegation  of  sale  and 
delivery,  etc.,  if  all  the  conditions  of  the  contract  are  ful- 
filled, and  nothing  remains  but  payment  of  the  price.85 


80  Meacham  v.  Pell,  51  Barb.  65. 
It  is  competent  if  it  was  commu- 
nicated.   Lathrop  v.  Bramhall,  64 
N.  Y.  365. 

The  defendant  cannot  introduce 
in  evidence  agreements  which  were 
signed  only  by  the  plaintiff  but  not 
by  himself  and  which  he  claims  do 
not  bind  him,  the  purpose  of  such 
introduction  being  to  treat  the 
agreements  as  statements  signed 
by  the  plaintiff.  Mach  Mfg.  Co. 
v.  Donovan,  86  N.  J.  L.,  327,  91 
Atl.  Rep.  310. 

81  Parsons  v.  Disbrow,  1  E.  D. 
Smith,  547. 

82Gallaher  v.  Waring,  9  Wend. 
28. 

83  Dent  v.  N.  A.  Steamship  Co., 
49  N.  Y.  390.  Compare  1  Wall. 
359;  Mach.  Mfg.  Co.  v.  Donovan, 
86  N.  J.  L.  327,  329,  91  Atl.  Rep. 
310  (where  bills  and  statements 
for  brick  sold  were  rendered  by 


the  plaintiff  to  the  defendant,  who 
made  no  objection  to  their  ac- 
curacy, and  paid  on  account  and 
had  repeatedly  promised  to  pay 
the  balance,  the  amount  sued  for). 

8<  Smith  v.  N.  Y.  Central  R.  R. 
Co.,  4  Abb.  Ct.  App.  Dec. 
262. 

Where  the  contract  between  the 
parties  fixed  the  price  of  glass  at  a 
certain  per  cent  lower  than  the 
lowest  price  of  a  certain  glass  com- 
pany, circular  letters  issued  by 
such  company,  enumerating  its 
prices  were  held  admissible.  Mat- 
thews Glass  Co.  v.  Burk,  162  Ind. 
608,  70  N.  E.  Rep.  371. 

85Moffett  v.  Sackett,  18  N.  Y. 
522;  Porter  v.  Talcott,  1  Cow.  359, 
and  cases  cited.  And  at  common 
law  this  rule  was  applied  where 
conditions  not  performed  had  been 
forfeited  by  the  defendant.  Cor- 
lies  v.  Gardner,  2  Hall,  345;  Clark 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


765 


A  written  contract  is  admissible  under  an  allegation  of 
the  contract,  not  stating  that  it  was  in  writing;86  and  an 
allegation  that  there  was  a  writing  is  not  needed,  even  when 
the  writing  is  necessary  by  reason  of  the  statute  of  frauds.87 

If  the  contract  was  in  duplicate,  the  production  of  either 
one  will  be  enough,  if  signed  by  the  defendant,88  without 
producing  or  accounting  for  the  other.89  If  it  consists  of 
two  or  more  parts,  one  containing  the  consideration  for  the 
other,  both  must  be  produced  or  accounted  for,  unless  the 
one  is  complete  in  itself.90 

An  invoice  is,  alone,  no  evidence  of  a  sale,91  but  maybe  made 


v.  Fairchild,  22  Wend.  583.  Other- 
wise now.  See  Oakley  v.  Morton, 
11  N.  Y.  25.  Compare  Holmes  v. 
Holmes,  9  N.  Y.  525,  affi'g  12  Barb. 
137;  Vinegar  Bend  Lumber  Co.  v. 
Soule  Steam  Feed  Works,  182 
Ala.  146,  62  So.'  Rep.  279.  (Re- 
covery of  purchase  price  under 
common  counts  for  goods  sold  and 
delivered.) 

86  See  paragraph  7  of  this  chapter; 
and  Tuttle  v.  Hannegan,  54  N.  Y. 
686,  affi'g  4  Daly,  92. 

87 1  Greenl.  Ev.  86. 

88  Stephen  Dig.  Ev.,  art.  64. 

89  See  Cleveland,  &c.,  R.  R.  Co. 
v.  Perkins,  17  Mich.  296. 

Where  an  order  for  the  sale  of 
books  was  executed  in  duplicate 
by  the  defendant,  and  it  appeared 
that  the  order  alleged  by  the  plain- 
tiff did  not  conform  with  the  dupli- 
cate copy  held  by  the  defendant, 
both  copies  were  held  admissible 
to  prove  the  real  contract  between 
the  parties  and  evidence  as  to  all 
that  occurred  at  the  time  of  the 
signing  is  also  admissible  as  bear- 
ing on  the  question  of  mutual 
mistake,  but  not  to  vary  the  terms 


of  the  contract  when  reformed. 
King  v.  Edward  Thompson  Co., 
56  Ind.  App.  274,  104  N.  E.  Rep. 
106. 

90  Dobbin  v.  Watkins,  Col.  &  C. 
Cas.  39,  s.  c.,  3  Johns.  Gas.  2d  ed. 
415.     But  see  paragraph  44,  and 
Chapter    XXVIII,    paragraph    2 
of  this  vol. 

91  It  does  not  of  itself  necessarily 
indicate  to  whom  the  things  are 
sent,  or  even  that  they  have  been 
sent  at  all.    Hence,  standing  alone, 
it  is  never  regarded  as  evidence  of 
title.    Dows  v.  National  Exchange 
Bank  of  Milwaukee,  91  U.  S.  (1 
Otto),  618,  630.     As  between  the 
consignor  and  consignee,  the  bill 
of  lading  cannot  be  regarded  as  a 
contract  in  writing,  but  merely  as 
an  admission  or  declaration  on  the 
part   of   the   consignor   as   to   his 
purpose,  at  the  time,  in  making  the 
shipment,  and  such  admission  is 
subject  to  be  rebutted  by  other 
circumstances  connected  with  the 
transaction.    Emery's  Sons  v.  Irv- 
ing Nat.  Bank,  25  Ohio  St.  360, 
s.  c.,  18  Am.  Rep.  299,  s.  P.,  Beebe 
v.  Mead,  33  N.  Y.  587. 


766  THE   FACT   OF   SALE 

relevant  by  connected  writings 92  or  parol  evidence  of  inten- 
tion. A  bill  of  parcels  or  particulars,  expressing  that  defend- 
ant bought  the  goods  of  plaintiff,  if  shown  to  have  accom- 
panied the  goods  to  defendant's  possession,93  is  prima  fade, 
but  not  conclusive  evidence  that  the  transaction  was  a 
sale.94 

Oral  evidence  is  competent,  to  show  that  a  mere  receipt 
for  merchandise 95  or  for  the  money  as  an  advance  on  mer- 
chandise to  be  delivered,96  or  a  mere  unilateral  promise  in 
writing  by  the  buyer,  to  pay  a  certain  sum,  not  stating  any 
terms  of  sale,97  was  given  on  a  sale,  and  to  prove  the  terms 
of  the  sale;  for  such  a  receipt  or  promise  is  not  a  written  con- 
tract within  the  rule  excluding  parol  evidence  to  explain  or 
vary  it.  Otherwise  of  an  instrument  that  expressly  imports 
a  bailment  or  storage,98  unless  shown  to  have  been  delivered 
subsequently  to  a  completed  sale.99 

6.  -  -  made  by  Letter  or  Telegram. 

To  prove  a  contract  made  by  a  proposal  and  assent 
through  correspondence  (as  distinguished  from  the  filling 
of  an  order  received  by  mail),  it  is  not  enough  to  prove  that 
the  proposal  was  assented  to  by  a  mental  act,  nor  by  con- 
duct unknown  and  not  communicated  to  the  proposer.1  But 

92  Buxton  v.  Rust,  L.  R.  7  Exch.  98  Wadsworth  v.  Allcott,  6  N.  Y. 
1, 5,  s.  c.,  1  Moak's  Eng.  135, 139.  64;  Stapleton  v.  King,  33  Iowa,  28, 

93  Or  to  have  been  received  by  s.  c.,  11  Am.  Rep.  109.    Compare 
him  before  delivery  of  the  goods.  Rahilly  v.  Wilson,  3  Dill.  420. 
Dent  v.  N.  A.  Steamship  Co.,  49  "  See  Allen  v.  Schuchardt,  1  Am. 
N.  Y.  390.  L.  Reg.  13;  Domestic  Sewing  Ma- 

94  Sutton  v.  Crosby,  54  Barb.  80;  chine  Co.  v.  Anderson,  23  Minn.  57. 
Beebe  v.  Mead  (above).  J  Northwest    Thresher    Co.     v. 

95  Though  containing  such  words      Kubicek,  82  Nebr.  485,  118  N.  W. 
•as  "at  $    per  bushel."    Sheldon  v.      Rep.  94;  White  v.  Corlies,  46  N.  Y. 

Peck,  13  Barb.  317;  or  "consigned  467.    Compare  Lungstrass  v.  Ger- 

for  six  months."     George  v.  Joy,  man  Ins.  Co.,  40  Mo.  201,  s.  c.,  8 

19  N.  H.  544;  Benj.  on  S.,  §  213.  Am.  Rep.  100.    An  order  for  goods 

96  Potter  v.  Hopkins,  25  Wend,  is  accepted  upon  the  delivery  of 
417.  the  goods  to  a  carrier  before  count- 

97  Tisdale  v.  Harris,  20  Pick.  9.  ermand.    Bloom  v.  Edward  Miller 


ACTIONS    FOR   PRICE    OF   GOODS,    ETC. 


767 


it  is  not  necessary  to  prove  that  the  assent  actually  came 
to  the  knowledge  of  the  proposer,  nor  does  evidence  that  it 
did  not  come  to  his  knowledge  avail.2  It  is  enough  to  prove 
that  the  assenting  party  duly  mailed  or  delivered  to  the 
telegraph  company 3  (whichever  was  the  adopted  course  of 
correspondence),4  an  unqualified  5  assent;  and  from  themo- 


&    Co.   (Ark.),    176   S.  W.   Rep. 
673. 

2  Vassar  v.  Camp,  11  N.  Y.  441, 
affi'g  14  Barb.  341. 

3  Parks  v.  Comstock,  59  Barb. 
16;  Trevor  v.  Wood,  36  N.  Y.  307, 
s.  c.,  3  Abb.  Pr.  N.  S.  355,  rev'g  41 
Barb.  255,  s.  c.,  26  How.  Pr.  451; 
Perry  v.  German-American  Bank, 
53  Neb.  89,  91-92,  73  N.  W.  Rep. 
538.    "We  think  it  should  be  held 
that    upon   proof   of    delivery   of 
the   message   for   the   purpose   of 
transmission,    properly    addressed 
to  the  correspondent  at  his  place 
of  residence,  or  where  he  is  shown 
to  have  been,  a  presumption  of  fact 
arises  that  the  telegram   reached 
its  destination,  sufficient  at  least 
to  put  the  other  party  to  his  denial, 
and   raise  an   issue  to   be  deter- 
mined."   Oregon  S.  S.  Co.  v.  Otis, 
100  N.  Y.  446,  452-453,  3  N.  E. 
Rep.    485.      Whether    acceptance 
by  telegram  was  made  within  rea- 
sonable time  is  a  question  for  the 
jury.    Robeson  v.  Pels,  202  Pa.  399, 
51  Atl.  Rep.  1028.    When  one  com- 
mences   correspondence   with   an- 
other by  telegraph  he  makes  the 
telegraph  company  his  agent  for 
the  transmission  and  delivery  of 
his  communication,  and  the  trans- 
mitted message  actually  delivered 
is  primary  evidence  of  the  trans- 
action.   If  such  message  is  lost  or 


destroyed,  its  contents  may  be 
proved  by  parol.  Magie  v.  Her- 
man, 50  Minn.  424,  36  Am.  St. 
Rep.  660,  52  N.  W.  Rep.  909. 
When  a  person  places  himself  in 
connection  with  the  telephone 
system  through  an  instrument  in 
his  office,  he  thereby  invites  com- 
munication in  relation  to  his  busi- 
ness through  that  channel.  Con- 
versations so  held  are  as  admissible 
in  evidence  as  personal  interviews 
by  a  customer  with  an  unknown 
clerk  in  charge  of  an  ordinary  shop 
would  be  in  relation  to  the  busi- 
ness then  carried  on,  and  the  fact 
that  the  voice  at  the  telephone  was 
not  identified  does  not  render  the 
conversation  inadmissible.  Wolfe 
v.  Missouri  Pac.  Ry.  Co.,  97  Mo. 
473, 10  Am.  St.  Rep.  331,  11  S.  W. 
Rep.  49. 

4  An  offer  sent  by  mail  by  one 
who  must  have  known  that  the 
regular  usage  of  conducting  busi- 
ness was  to  reply  by  mail,  implies 
authority  to  communicate  accept- 
ance by  mail.    Wall's  Case,  L.  R. 
15  Equity,  18,  s.  c.,  5  Moak's  Eng. 
686. 

5  Cherokee  Mills  v.  Gate  City 
Cotton  Mills,   122  Ga.  268,  271, 
50  S.  E.  Rep.  82.    As  to  what  is  a 
qualification  such  as  to  preclude 
assent,   see   Vassar  v.   Camp,    11 
N.   Y.   441,   affi'g   14   Barb.   341; 


708 


THE    FACT   OF   SALE 


nient  the  communication  thus  passed  beyond  his  control 
the  contract  was  complete,6  unless  the  proposal  had  been 
revoked,  by  notice  previously  actually  reaching  him,7  or  by 
the  death  of  the  proposer.8  Where  the  contract  is  made  by 
correspondence  the  original  letters  or  telegrams  constitut- 
ing it  are  the  primary  evidence.  In  the  case  of  a  letter,  the 
original  which  was  actually  sent  must  be  produced  or  ac- 
counted for,  or  a  duplicate  made  and  signed  as  such  at  the 
time.  A  press  copy  is  not  competent  in  lieu  of  it  without 
laying  proper  foundation  for  secondary  evidence.9  When 
such  foundation  is  laid,  a  copy  may  be  put  in  evidence  by 
calling  the  person  who  made  it,  or  some  other  witness  who 
has  compared  it  with  the  original,  to  swear  to  its  accuracy. 
An  entry  purporting  to  be  a  copy,  made  in  a  letter-book  by 
a  clerk  since  deceased,  is  competent  prima  facie  evidence 
of  the  contents  of  the  original,  upon  proof  that  according 
to  the  usual  course  of  the  employer's  business,  letters  by 


Clark  v.  Dales,  20  Barb.  42;  Beck's 
Case,  L.  R.  9  Ch.  App.  392,  s.  c.,  8 
8  Moak's  Eng.  929. 

A  telegram  asking  an  offer  for 
eggs  was  answered  by  telegraph, 
viz:  "For  good  stock  will  give 
$8.25,  Chicago,  prompt  accept- 
ance." On  the  same  day  the  offeree 
telegraphed:  "Accept  offer  of 
S8.25  per  case."  These  telegrams 
constitute  a  contract.  The  Hol- 
low Rock  Produce  Co.  v.  Linn,  174 
111.  App.  419. 

6  The  leading  case  is  Mactier  v. 
Frith,  6  Wend.  103,  117,  rev'g  1 
Paige,  434,  s.  P.,  Re  Imperial  Land 
Co.,  L.  R.  7  Ch.  587;  opposed  in 
7  Am.  Law  Rev.  433;  Reeves  & 
Co.  v.  Bruening,  13  N.  D.  157,  100 
N.  W.  Rep.  241.  In  the  applica- 
tion of  this  rule  observe  that  it  is 
based  on  the  mail  or  telegraph 
being  the  usual  and  proper  course 


of  communication.  If  the  parties 
are  in  the  same  place,  acceptance 
sent  by  mail  or  telegraph,  and  not 
actually  reaching  the  party,  is  not 
enough,  unless  that  mode  of  com- 
munication was  authorized  by 
him,  or  the  proposal  was  communi- 
cated by  him  in  the  same  way. 
In  general  a  communication  sent 
in  either  method  may  be  accepted 
by  assent  put  on  its  course  in  the 
same  method. 

7  Wheat  v.  Cross,  31  Md.  99,  s.  c., 
1  Am.  Rep.  28,  and  cases  cited. 

8  See  Mactier  v.  Frith  (above) . 
91  Tayl.  Ev.  414.     Where  the 

copies  are  made  by  manifolding  or 
by  printing  from  a  stencil,  as  in 
the  use  of  the  papyrograph  or 
electric  pen,  the  principle  that 
each  is  an  original  seems  appli- 
cable, as  in  the  case  of  ordinary 
printing. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  769 

him  were  copied  by  this  clerk;  and — if  it  be  a  hand  copy, 
not  a  press  copy — that  this  entry  was  in  the  clerk's  hand- 
writing, and  that  in  other  instances  his  copies  had  been  ex- 
amined and  found  correct.10  Evidence  that  it  was  the  usual 
course  of  business  of  the  deceased  clerk  to  mail  letters  thus 
copied  by  him,  is  prima  facie  evidence  that  the  original  was 
mailed.11  A  sworn  copy  of  a  letter-press  copy  is  competent 
secondary  evidence  of  the  contents  of  the  letter,  without 
producing  the  letter-press  copy,  if  production  of  the  letter- 
book  is  offered  and  not  required.12  Where  a  press  copy  is 
produced  as  secondary  evidence,  a  witness  may  be  asked  if 
it  appears  to  be  in  the  handwriting  of  the  party;  then  by 
proving  that  it  is  a  press  copy,  it  will  follow  that  the  letter 
was  his.13 

If  the  communication  was  by  telegraph,  the  appropriate 
primary  evidence,  in  strictness,  is  sometimes  the  original 
message  delivered  to  the  telegraph  company  by  the  sender, 
and  sometimes  the  transcript  delivered  by  the  company  to 
the  receiver.14  The  question  depends  on  whether  it  is  de- 
sired to  prove  the  act  of  the  sender  as  the  manifestation  of 
assent,15  or  admission16  on  his  part;  or  to  prove  actual  notice 
to  the  receiver.17  In  the  former  case,  the  sender's  message 

10  Prith  v.  Fairclough,  3  Campb.  nal   evidence  of  that  fact  would 
305.  be  the  telegram  itself  in  the  hand- 

11  Id.;  and  see  3  Campb.  379;  and  writing   of   the  sender,  or  of  an 
61  N.  Y.  362.  agent  shown  to  have  been  duly 

12  Goodrich  v.  Weston,  102  Mass,  authorized.     But  when  it  appears 
362,  s.  c.,  3  Am.  Rep.  469.  that   the   telegram  has   been   de- 

13  Commonwealth  v.  Jefferies,  7  stroyed  by  the  company,  secondary 
Allen,  561.  evidence  of  the  essential  fact  may 

14  "While   the   transcript   deliv-  be     given."       Oregon     Steamship 
ered  to  the  person  addressed  is  for  Co.  v.  Otis,  100  N.  Y.  446,-  453, 
some    purposes,    as   between    him  3  X.  E.  Rep.  485. 

and  the  sender,  deemed  the  origi-  15  As  in  Trevor  v.  Wood,  36  N.  Y. 

nal,  it  can  never  be  so  without  307,    s.    c.,    3   Abb.    Pr.    N.    S. 

competent  proof  that  the  alleged  355. 

sender  did  actually  send,  or  au-  16  See  Commonwealth  v.  Jeffer- 

thorize  to  be  sent,  the  dispatches  in  ies,  7  Allen,  563. 

question.    The  primary  and  origi-  "  As   where   the   offerer   desires 


770  THE    FACT   OF    SALE 

as  delivered  to  the  telegraph  office  is  primary  evidence.  In 
the  latter  case  the  company's  transcript,  as  delivered  to  the 
receiver  is  the  only  primary  evidence.  In  either  case  the 
duplicate  that  is  not  the  primary  evidence  is  competent  as 
secondary  evidence,  and  from  it  the  jury  may  infer  the 
other.18  The  telegraph  clerks  are  not  privileged  merely  be- 
cause of  the  character  of  their  vocation.19 

A  written  order,  shown,  by  proof  of  handwriting,20  or 
otherwise,  to  have  come  from  defendant  or  his  authorized 
agent,  produced  from  plaintiff's  possession,  is  competent 
without  proof  of  the  mode  of  its  transmission,  for  it  will  be 
presumed  to  have  been  duly  delivered.21  Where  the  ad- 
mission is  susceptible  of  being  understood  as  referring  only 
to  the  correctness  of  items  hi  description  or  price,  other 
evidence  of  delivery  of  the  goods  must  be  adduced.  Ad- 
missions as  proof  of  either  separate  fact  will  be  further  con- 
sidered below.  Under  an  allegation  of  sale  and  delivery  to 
or  by  a  party,  evidence  of  the  act  on  the  part  of  his  agent 
is  admissible,22  and  if  shown  to  have  been  received  in  due 
course  of  mail,  in  answer  to  letters  mailed  to  the  alleged 
writer,  it  may  be  presumed  to  have  come  from  him.23  The 
date  of  the  paper,  if  it  be  dated,  is  prima  facie  evidence  of 
the  time  it  was  written,24  unless  its  competency  as  evidence 

to  revoke;  see  Wheat  ».  Cross,  31          23  See  Bush  v.  Miller,  13  Barb. 

Md.  99,  s.  c.,  1  Am.  Rep.  28.  487.   A  letter  received  in  due  course 

18  See  Commonwealth  v.  Jeffer-  of  mail  in  response  to  a  letter  sent 
ies  (above).  by  the  receiver  is  presumed,  in  the 

19  State  v.  Litchfield,  58  Me.  267.  absence  of  any  showing  to  the  con- 

20  See  Chapter  on  BILLS,  NOTES  trary,  to  be  the  letter  of  the  person 
AND  CHECKS.  whose  name  is  signed  to  it.    Regan 

See  as  to  the  admissibility  of  an  v.  Smith,  103  Ga.  556,  29  S.  E. 

unsigned    order    dictated    by    the  Rep.  759.    And  proof  of  handwrit- 

purchaser     to     plaintiff's     agent,  ing    is    not    required.      National 

Gross  v.  Feehan,   110  Iowa,   163,  Ace.  Soc.  v.  Spiro,  47  U.  S.  App. 

81  N.  W.  Rep.  235.  293, 78  Fed  Rep.  774. 

21  See,  for  this  principle,  Chapter          24  Livingston  v.  Arnoux,  36  N.  Y. 
XIII,  paragraphs  12  and  20.  519,    affi'g    15    Abb.    Pr.    N.    S. 

22Sherman  v.  X.  Y.  Central  R.      158. 
R.  Co.,  22  Barb.  239. 


ACTIONS    FOR   PRICE    OF   GOODS,    ETC. 


771 


depends  on  the  date,  in  which  case  plaintiff  should  be  pre- 
pared with  other  evidence  on  that  point.25  Evidence  that  a 
letter  was  duly  mailed 26  in  the  post-office  or  government  let- 
ter box,27  or  deposited  in  the  box  or  other  place  where  the  per- 
son addressed  was  accustomed  to  have  his  letters  received,28 
will  sustain  an  inference  that  he  received  it,29  even  though 
he  testify  that  he  did  not.30  The  post-mark  is  prima  facie 
evidence  of  the  time  and  place  when  the  communication 
was  in  the  post-office,31  but  not  of  the  tune  when  it  was  first 
put  in.32  Its  genuineness  should  be  shown.33 

The  mere  fact  that  a  letter  or  telegram  put  hi  evidence 
was  sent  in  response  to  a  previous  one,  or  was  one  of  a  series 


26  Smith  v.  Shoemaker,  17  Wall. 
637.  Compare  Jermain  v.  Den- 
nison,  6  N.  Y.  276. 

26  Huntley  v.  Whittier,  105  Mass. 
391,  s.  c.,  7  Am.  Rep.  536,  and 
cases  cited;  3  Dill.  571. 

27  See  2  Abb.  New  Cas.  70,  note. 

28  Howard  v.  Daly,  61  N.  Y.  366. 

29  A  stricter   rule  is  applied  in 
some  other  actions.    See  Chapter 
IX,  paragraph  42  of  this  vol.,  and 
Carpener  v.  Providence  Ins.  Co.,  4 
How.  U.  S.  220.    A  letter  properly 
mailed  and  addressed  to  a  person 
at  his  place  of  residence  is  presumed 
to   have   been   received   by   him. 
Oregon  Steamship  Co.  v.  Otis,  100 
N.  Y.  446.     But  it  must  appear 
that  the  person  to  whom  it  was 
addressed  resides  in  the  city  or 
town  named  in  the  address.    Hen- 
derson v.  Carbondale  Coal  Co.,  140 
U.  S.  25.    The  presumption  is  one 
of  fact,  subject  to  control  and  limi- 
tation by  other  facts.     Shultz  v. 
Jordan,  141  U.  S.  213;German  Nat. 
Bank  of  Denver  v.  Burns,  12  Col. 
539,  13  Am.  St.  Rep.  247,  21  Pac. 
Rep.    714.     Whether    there   is    a 


presumption  by  the  law,  or  only 
ground  for  an  inference  by  the 
jury,  compare  further,  Allen  v. 
Blunt,  2  Woodb.  &  M.  121,  130; 
Bank  of  Bellefontaine  v.  Mc- 
Manigle,  69  Penn.  St.  156,  s.  c., 
8  Am.  Rep.  236. 

30  Huntley  v.  Whittier  (above). 
Wall's  Case,  I..  R.  15  Eq.  18,  s.  c., 
5  Moak's  Eng.  686,  693.  Where 
the  person  to  whom  the  letter  was 
addressed  is  interested  in  the  event 
of  the  action,  and  denies  that  it 
was  received  by  him,  this  presents 
a  question  of  fact  which  is  for  the 
jury  to  determine,  and  not  the 
court.  Moran  v.  Abbott,  26  App. 
Div.  (N.  Y.)  570,  572. 

31 2  Abb.  New  Cas.  70,  note.  As 
to  its  genuineness,  see  2  Tayl.  Ev. 
1229. 

32  Id. 

33  There  is  no  presumption  that  a 
person  whose  name  is  signed  to  a 
letter  is  its  author,  merely  because 
it  was  carried  by  the  post.    O'Con- 
nor Mining,  &c.  Co.  v.  Dickson, 
112   Ala.   304,  309,   20  So.   Rep. 
413. 


772  THE    FACT   OF   SALE 

of  connected  correspondence,  nor  even  the  fact  that  it  refers 
to  the  previous  letter  to  which  it  was  an  answer,  does  not 
render  it  incompetent  without  the  other,  nor  compel  him 
who  puts  it  in  to  offer  that  also,  although  it  entitles  the 
other  party  to  offer  the  connected  letter  if  he  desires.34  But 
unless  the  communication  on  its  face  appears  to  embody  all 
the  terms  intended  to  be  assented  to,  either  party  may  show 
that  it  was  sent  in  answer  to  a  previous  one  of  such  nature 
that  it  should  be  read  or  taken  with  the  answer,  in  order 
that  the  whole  contract  may  appear; 35  and  if  this  be  shown, 
the  earlier  letter  will  be  a  necessary  part  of  the  primary  ev- 
idence of  the  contract.36 

If  the  contract  was  made  by  correspondence,  and  it  is  not 
apparent  on  the  face  of  the  communication  offered  in  ev- 
idence that  it  was  intended  as  embodying  the  terms  of  the 
contract  at  large,  then  for  the  purpose  of  detennining  whether 
it  constituted  the  contract  within  the  rule  which  excludes 
oral  evidence  to  vary  a  contract,  oral  evidence  is  admissible 
of  the  circumstances  and  purpose  in  which  it  was  sent;  and 
the  question  is  whether,  according  to  the  intent  and  under- 
standing of  the  parties  at  the  tune  it  was  sent  and  received, 
it  was  the  expression  of  the  contract,  or  only  a  part  of  it.37 
If  the  latter,  the  other  terms  may  be  shown  by  parol.38  If 
the  correspondence  appears  to  embody  the  contract,  it  con- 
stitutes the  primary  evidence,  and  is  within  the  rule  forbid- 
ding parol  evidence  to  explain  a  writing.39 

34  Stone  v.  Sanborn,  104  Mass,  against  him,  may  be  explained  by 
319,  s.  c.,  6  Am.   Rep.  238,  disap-  him  as  a  witness  in  his  own  behalf, 
proving  1  C.  &  K.  626.    And  see  and  its  effect  upon  the  issues  and 
Gary  v.  Pollard,  14  Allen,  285.  the  force  of  the  explanation  are 

35  Beach   v.  Raritan,  &c.  R.  R.  proper  subjects  for  the  considera- 
Co.,  37  N.  Y.  463, 464.  tion  of  the  jury.    Anvil  Mining  Co. 

36  See  Hough  v.  Brown,  19  N.  Y.  v.  Humble,  153  U.  S.  540. 

Ill;  Myers?;.  Smith,  48  Barb.  614;  "Beach  v.  Raritan,  &c.  R.  R. 

Brisban  t.  Boyd,  4  Paige,  17;  Clark  Co.,  37  N.  Y.  463,  464. 

v.  Dales,  20  Barb.  42;  Brayley  v.  ss  Id. 

Jones,  33  Iowa,  508.    A  letter  of  a  :|J  Whitmore    v.    South    Boston 

party  to  the  suit,  bearing  upon  its  Iron  Co.,  2  Allen,  52,  s.  c.,  1  Am.  L. 

issues  and  introduced  in  evidence  Reg.  403. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


773 


7.  Requisite  Memorandum  under  Statute  of  Frauds. 

If  the  price  is  $50  or  more,  or,  where  no  price  was  fixed,  if 
the  value  be  clearly  proven  to  be  worth  that  sum,40  the  stat- 
ute of  frauds  41  requires  evidence  that  the  agreement,  or  some 
note  or  memorandum  thereof,  was  in  writing,  and  subscribed 42 
by  the  party  to  be  charged  therewith,43  or  his  lawful  agent,44 
unless  part  payment  or  delivery  is  shown.  The  writing  is 
competent  under  a  general  allegation  of  contract  without 
specifying  writing.45  If,  however,  the  complaint  does  not 


Where  the  plaintiff  bases  his 
action  upon  a  written  order  and  its 
terms  are  relied  on  for  judgment 
for  the  price  of  the  goods,  parol  evi- 
dence is  not  admissible  to  show  that 
the  contract  is  different  from  that 
contained  in  the  accepted  order. 
Reeves  &  Co.  v.  Bruening,  13  N.  D. 
157,  100  N.  W.  Rep.  241. 

40  Contracts  for  the  exchange  of 
goods  of  the  value  of  $50  or  more 
are  within  the  statute.    Combs  v. 
Bateman,  10  Barb.  573. 

41  Personal  Property  Law  (N.  Y. 
Cons.  Laws),  §  85. 

42  The  word  "subscribed"  con- 
tained in  the  old  statute,  and  which 
had  been  construed  to  require  a 
signature   at    the   end,   has    been 
changed  to  "signed"  by  the  new 
statute.     Personal   Property   Law 
(X.  Y.  Cons.  Laws),  §85.     Prob- 
ably it  will  be  held  that  a  signa- 
ture at  any  place  in  the  note  or 
memorandum  will  satisfy  the  stat- 
ute. 

43  Subscription  by  both   is  not 
essential,  even  on  the  ground  of 
mutuality.      Justice    v.    Lang,    42 
N.  Y.  493,  52  N.  Y.  323,  39  Super. 
Ct.  (7  J.  &  S.)  283.    And  see  Butler 
T.  Thompson,  92    U.  S.   (2  Otto) 


412,  11  Blatchf.  533.  And  the  fact 
that  plaintiff  added  his  signature, 
and  afterward  erased  it,  does  not 
alone  prevent  his  using  the  paper 
in  evidence.  Rhoades  v.  Castner, 
12  Allen,  130. 

The  statute  does  not  apply  to 
agreements  for  the  sale  of  goods 
to  be  manufactured  by  the  seller 
especially  for  the  buyer  and  which 
are  not  suitable  for  sale  to  others 
in  the  ordinary  course  of  the  sel- 
ler's business.  Personal  Property 
Law  (X.  Y.  Cons.  Laws),  §  85. 

44  Dykers  v.  Townsend,  24  N.  Y. 
57. 

The  authority  of  the  agent  to 
sign  the  memorandum  need  not 
be  in  writing.  Id.  But  it  must  be 
proved  by  evidence  outside  the 
oral  evidence  of  the  contract  of 
sale.  Hawley  v.  Keeler,  53  X.  Y. 
114. 

One  party  to  the  contract  can- 
not be  the  agent  of  the  other  for 
the  purpose  of  signing  the  contract. 
Wilson  v.  Lewiston  Mill  Co.,  150 
X.  Y.  314,  44  X.  E.  Rep.  959,  55 
Am.  St.  Rep.  680. 

45  Washburn  v.  Franklin,  7  Abb. 
Pr.  s.  c.,  28  Barb.  27. 


774 


THE    FACT   OF   SALE 


affimatively  indicate  that  the  contract  was  void  under  the 
statute,  and  the  answer  admits  the  contract,  without  alleg- 
ing the  facts  showing  it  to  be  void  under  the  statute,  evi- 
dence of  compliance  with  the  statute  is  dispensed  with  by 
the  admission.46  The  note  or  memorandum  may  be  dis- 
tinguished from  the  contract  of  which  it  is  the  evidence.47 
It  matters  not  how  many  papers  must  be  taken  together 
to  make  out  the  note  or  memorandum,48  nor  how  informal 
they  are,49  if  the  statue  is  substantially  complied  with;  but 
where  several  papers  are  resorted  to,  each  must  be  sub- 
scribed by  defendant,  or  imported,  by  reference  or  annexa- 
tion, into  one  that  is,  leaving  nothing  to  be  supplied  by  parol, 
to  complete  the  memorandum,  except  evidence  of  the  identity 
of  the  paper.50  Parol  proof  is  competent  to  supply  the  ref- 


46  Duffy  v.  O'Donovan,  46  N.  Y. 
223;  Spear  v.  Hart,  3  Robt.  420. 

47  Boardman  v.  Spooner,  13  Allen, 
533;  Benj.  on  S.  209;  Williams  v. 
Bacon,    2    Gray,    387;    Marsh    v. 
Hyde,  3  Id.  331.    And  see  56  N.  Y. 
503. 

48  Ryan   ».   United   States,    136 
U.  S.  68,  83;  Ridgway  a.  Wharton, 

6  H.  L.  Cas.  238;  Cave  v.  Hastings, 

7  Q.  B.  Div.  125.    As,  for  instance, 
the  rules  of  an  exchange,  and  the 
memoranda  of  a  transaction  by  its 
members  (Peabody  v.  Speyers,  56 
X.  Y.  230) ;  or  ordinary  commercial 
correspondence       (Thompson      v. 
Menck,  4  Abb.  Ct.  App.  Der .  400, 
rev'g  22  How.   Pr.  431;  Leather 
Cloth  Co.  v.  Hieronimus,  L.  R.  10 
Q.  B.  140,  s.  c.,  12  Monk's  Eng. 
211). 

49  Same  cases;  and  see  Argus  Co. 
v.  Mayor,  &c.  of  Albany,  55  N.  Y. 
495,  affi'g  in  effect  7  Lans.  264. 

M  Pierce  v.  Corf,  L.  R.  9  Q.  B. 
210,  s.  c.,  8  Moak's  Eng.  316. 
Thus,  defendant's  assent  may  be 


proved  by  his  writing  in  answer  to 
a  request  from  plaintiff  for  the  con- 
tract: "I  send  you  a  copy  of  your 
letter  of,  &c.,"  inclosing  it.  This, 
though  not  intended  as  a  recogni- 
tion, is,  if  signed  by  him,  a  sufficient 
signing  of  a  memorandum.  Bux- 
ton  v.  Rust,  L.  R.  7  Exch.  1,  5,  s.  c., 
1  Moak's  Eng.  135,  139.  Compare 
Hicks  v.  Cleveland,  48  N.  Y.  84; 
Neubery  v.  Wall,  65  Id.  484;  and 
paragraphs  43  and  44. 

A  letter  referring  to  a  previous 
letter  containing  the  terms  of  the 
contract  is  not  a  sufficient  memo- 
randum when  the  second  letter 
does  not  admit  the  making  of  the 
contract  alluded  to.  Wilson  v. 
Lewiston  Mill  Co.,  150  N.  Y.  314, 
44  N.  E.  Rep.  959,  55  Am.  St.  Rep. 
680. 

See  also,  Coe  v.  Tough,  116  N.  Y. 
273,  22  N.  E.  Rep.  550. 

Separate  papers  referring  to  the 
same  subject-matter  may  be  treated 
as  one  memorandum.  Peabody 
v.  Speyers,  56  X.  Y.  230. 


ACTIONS    FOR    PRICE    OF    GOODS,    KTC. 


775 


erence,  where  it  can  be  done  clearly  and  with  certainty.'1 
If  the  paper  is  not  addressed  to  plaintiff,  oral  evidence  of  its 
delivery  to  him  is  competent;  but  not  always  essential.52  If 
interlineations  appear,  oral  evidence  that  they  were  assented 
to  is  competent.53  The  memorandum  must  be  complete, 
so  far  as  that  all  elements  of  the  contract  or  engagement  on 
the  part  of  the  defendant,  or  party  sought  to  be  charged, 
must  be  stated,54  or  legally  presumable  from  what  is  stated;55 
and  defects  cannot  be  supplied  by  parol; 56  but  the  fact  of  its 
delivery,57  and  that  plaintiff,  in  consideration,58  promised 

55  Id.;  Warren  v.  Winne,  2  Lans. 
209. 

56  Wright  v.  Weeks  (above) ;  Calk- 
ins v.  Falk,  1  Abb.  Ct.  App.  Dec. 
291,    affi'g    39    Barb.    620.      But 
where   the   terms   are   stated,   an 
ambiguity  as  to  what  they  mean 
may  be  cleared  by  oral  evidence, 
if  it  can  be  done  by  showing  the 
surrounding  circumstances,  as  dis- 
tinguished from  the  oral  stipula- 
tions   of   the   parties.      Hagan    v. 
Domestic    Sewing    Machine    Co., 
9  Hun,  73.    And  see  25  N.Y.  153, 
12  Id.  40.    If,  however,  the  writ- 
ing is  insufficient,  but  there  has 
been  such  a  performance  as  to  take 
the  case  out  of  the  operation  of  the 
statute,  oral  evidence  is  admissible 
to  supply  omissions  and  to  estab- 
lish   what    were    the    contractual 
relations  of  the  parties.    Routledge 
v.    Worthington   Co.,    119   N.    Y. 
592,  23  N.  E.  Rep.  1111. 

57  See  55  N.  Y.  504. 

Or  of  subsequent  parol  accept- 
ance. Mason  v.  Decker,  72  N.  Y. 
595,  28  Am.  Rep.  190. 

58  Where  the  price  is  agreed  upon, 
the  note  or  memorandum  must  dis- 
close it.    Cameron  v.  Tompkins,  72 
Hun,  113, 25  N.  Y.  Supp.  305. 


The  fact  that  a  memorandum 
contains  a  stipulation  to  reduce  the 
contract  to  a  formal  agreement 
does  not  necessarily  render  the 
memorandum  insufficient.  Peirce 
•v.  Cornell,  117  N.  Y.  App.  Div.  66, 
102  N.  Y.  Supp.  102. 

51  Beckwith  v.  Talbot,  95  U.  S. 
(5  Otto)  289,  292. 

52  Darby  v.  Pettee,  2  Duer,  139. 
And  see  55  N.  Y.  495;  Peabody  v. 
Speyer,  56  Id.  236. 

"Stewart  v.  Eddowes,  L.  R.  9 
Com.  PL  311,  s.  c.,  9  Moak's  Eng. 
405. 

54  Wright  v.  Weeks,  25  N.  Y. 
153,  affi'g  3  Bosw.  377.  The  writ- 
ten memorandum  of  a  contract 
required  by  the  statute  of  frauds 
must  contain,  within  itself  or  by 
reference  to  other  writings,  all  the 
essential  elements  of  a  contract, 
and  when  it  comes  up  to  these  re- 
quirements neither  party  will  be 
permitted  to  show  that  the  con- 
tract was  other  or  different  than 
that  stated.  Routledge  v.  Worth- 
ington Co.,  119  N.  Y.  592,  23  N.  E. 
Rep.  1111. 

A  check  of  the  purchaser  is  not 
a  sufficient  memorandum.  Hess- 
berg  v.  Welsh,  147  X.  Y.  Supp.  44. 


77(5  THE    FACT   OF   SALE 

to  perform  on  his  part,  may  be  proven  by  parol,59  as  well  as 
the  rate  of  payment,  if  the  memorandum  states  the  means 
of  determining  the  rate.60  So  the  performance  by  the  plain- 
tiff may  be  proved  by  parol;  and  evidence  of  a  parol  modifi- 
cation in  this  respect  does  not  impair  the  effect  of  the  mem- 
orandum.61 

8.  General  Rule  as  to  Explaining  Writing  by  Parol. 

In  the  present  state  of  the  law,  the  rule  excluding  parol 
to  vary  a  writing,  in  its  application,  to  commercial  sales, 
amounts  to  little  more  than  this  principle;  viz.,  that  when 
the  parties  or  then*  agents  have  embodied  the  terms  of  then* 
agreement  in  writing,  neither  can,  in  an  action  between 
themselves  (unless  impeaching  the  instrument),  give  oral 
evidence  that  they  did  not  mean  that  which  the  instrument, 
when  properly  read,  expresses  or  legally  implies,  or  that  they 
meant  something  inconsistent  therewith. 

In  more  detail,  the  rule  and  its  established  exceptions 
may  be  stated  thus :  A  written  instrument,  although  it  be  a 
contract  within  the  meaning  of  the  rule  on  this  point,  does 
not  exclude  oral  evidence  tending  to  show  the  actual  transac- 
tion, in  the  following  cases: 

1.  Where  the  action  is  not  between  the  parties  to  the 

See  also  Drake  v.  Seaman,  97  Iron  Co.,  53  Me.  20;  Benj.  on  S., 

N.  Y.  230.    A  seal  upon  a  bill  of  §  210. 

sale  of  goods  is  presumptive  evi-  60As  where  it  specified  "current 

dence  of  a  sufficient  consideration,  rates"  (55  X.  Y.  504),  or  even  left 

Carey  v.   Dyer,   97  Wis.   554,  73  the  parties  to  a  quantum  meruit. 

X.  W.  Rep.  29.  Id.  Compare  Stone  v.  Browning,  68 

59  This  is  the  sound  principle,  and  N.  Y.  598. 

goes  farther  than  any  other  view  61  Leather  Cloth  Co.  v .  Hieroni- 
to  harmonize  the  conflict  in  the  mus  (above).  But  a  verbal  ar- 
cases.  See  cases  above  cited,  and  rangement  subsequently  made  re- 
Justice  v.  Lang,  52  N.  Y.  323,  and  lating  to  the  thing  sold,  or 
cases  cited;  Williams  v.  Morris,  contracted  for,  which  would  vary 
U.  S.  Supreme  Ct.  (17  Alb.  L.  J.)  by  parol  the  substance  of  the  con- 
56.  But  of  course  acceptance  with  tract  cannot  be  shown.  Hill  v. 
modification  cannot  be  proved  by  Blake,  97  X.  Y.  216,  221-222. 
parol.  Jenness  v.  Mount  Hope 


ACTIONS   FOR    PRICE   OF   GOODS,    ETC. 


777 


instrument,  nor  those  claiming  under  and  in  privity  with 
them.62 

2.  Where  the  object  of  the  evidence  is  to  impeach  the 
validity  of  the  instrument,  or  any  part  of  it.63 

3.  Where  the  object  of  the  evidence  is  to  establish  a  sepa- 
rate oral  agreement  constituting  a  condition  precedent  to 
the  existence  of  an  obligation  claimed  to  arise  on  the  in- 
strument.64 


62  Folinsbee  v.  Sawyer,  157  N.  Y. 
196,  199;  51  N.  E.  Rep.  994;  Han- 
kinson  v.  Vantine,  152  N.  Y.  20,  46 
N.  E.  Rep.  292;  Tyson  v.  Post, 
108  N.  Y.  217;  Coleman  v.  First 
Xat,  Bank,  53  N.  Y.  388;  Coleman 
r.  Pike  County,  83  Ala.  326,  3 
Am.  St.  Rep.  746,  3  So.  Rep.  755; 
Bruce  v.  Roper  Lumber  Co.,  87 
Va.  381,  24  Am.  St.  Rep.  657, 
13  S.  E.  Rep.  153;  De  Goey  v. 
Van  Wyk,  97  Iowa,  491,  497, 
66  N.  W.  Rep.  787;  Roof  v.  Chat- 
tanooga Pulley  Co.,  36  Fla.  284, 
18  So.  Rep.  597.  See  paragraph 
16. 

83  National  Novelty  Import  Co. 
v.  Moore,  171  N.  C.  703,  89  S.  E. 
Rep.  25.  As,  for  instance,  for 
want  of  due  execution  or  delivery, 
or  for  illegality,  fraud,  duress, 
or  lack  of  consideration,  or  as 
made  under  mistake  (see  chap. 
14,  and  the  chapters  on  these  de- 
fenses), and  the  rule  is  the  same 
whether  the  party  adducing  the 
evidence  seeks  to  avoid  the  instru- 
ment, or  to  have  it  reformed.  1 
Story's  Eq.  Jur.,  §  156,  etc.  Rule 
that  parol  evidence  is  inadmissible 
to  contradict  or  vary  written  con- 
tract applias  only  to  a  written 
contract  which  is  in  force  as  a 
binding  obligation.  McFarland 


v.  Sikes,  54  Conn.  250,  1  Am.  St. 
Rep.  Ill,  7  Atl.  Rep.  408. 

"Pym  v.  Campbell,  6  E.  &  B. 
370;  Wallis  v.  Littell,  11  C.  B.  N. 
S.  369.  Parol  evidence  is  admis- 
sible to  show  that  a  writing  which 
is  in  fact  a  complete  contract,  of 
which  there  has  been  a  manual 
tradition,  was  not  to  and  did  not 
become  a  binding  contract  until 
the  performance  or  occurrence  of 
some  condition  precedent  resting 
in  parol.  Reynolds  v.  Robinson, 
110  N.  Y.  654;  Juilliard  v.  Chaffee, 
92  N.  Y.  529,  535;  Benton  v. 
Martin,  52  N.  Y.  570;  Brewers' 
G.  Ins.  Co.  v.  Burger,  10  Hun, 
56;  Ware  v.  Allen,  128  U.  S.  590, 
595;  Burke  r.  Dullaney,  153  U.  S. 
228;  Adams  v.  Morgan,  150  Mass. 
143;  Faunce  v.  State  Mut.  Life 
Ins.  Co.,  101  Mass.  279;  Nutting 
v.  Minnesota  Fire  Ins.  Co.,  98 
Wis.  26,  32,  73  N.  W.  Rep.  432. 
Otherwise  of  a  deed  delivered  to 
the  party.  Worrall  v.  Munn,  5  N. 
Y.  229.  A  condition  subsequent 
cannot  be  proved  by  parol.  Grid- 
ley  v.  Dole,  4  N.  Y.  486.  ' 

It  is  error  to  permit  a  defendant 
in  an  action  to  recover  the  pur- 
chase price  of  goods  sold  under  a 
contract  absolute  in  form  to  testify 
over  objection  and  exception,  that 


778 


THE    FACT   OF   SALE 


4.  Where  the  object  of  the  evidence  is  simply  to  show  the 
surrounding  circumstances  of  the  parties,  and  of  the  sub- 
ject of  the  contract,  and  the  usages  of  language  under  which 
the  instrument  was  written,  in  order  to  enable  the  court  to 
read  the  instrument  with  the  same  knowledge  with  which 
the  parties  wrote  it.65 

5.  Where  the  language  of  the  instrument  leaves  its  mean- 
ing doubtful,66  or  extrinsic  facts  in  evidence  raise  a  doubt  in 
respect  to  its  application.67 

6.  Where  it  appears  that  the  instrument  was  not  intended 


plaintiff's  agent,  at  the  time  of 
signing  the  contract,  said:  "It  is 
not  binding  if  you  don't  want  the 
books;  after  you  inspect  them,  you 
can  send  them  back,  you  will  not 
commit  yourself  in  any  way." 
German  Publication  Society,  Inc., 
v.  Pichler,  97  Misc.  644,  162  N.  Y. 
Supp.  260. 

65  See  Chapter  V,  paragraph  82 
and  notes,  of  this  vol.;  and  Dana  v. 
Fiedler,  12  N.  Y.  40,  affi'g  1  E.  D. 
Smith,  463;  Lidgerwood  Mfg.  Co. 
v.  Robinson,  etc.,  Co.,  183  111.  App. 
431,  437;  Pollen  v.  Le  Roy,  30  N. 
Y.  549,  affi'g  10  Bosw.  38;  Messmore 
v.  N.  Y.  Shot  &  Lead  Co.,  40  N.  Y. 
422;  Staackman,  Horschitz  &  Co. 
v.  Gary,  197  111.  App.  601.  Where 
goods  were  delivered  under  a  con- 
tract by  which  the  purchaser  agreed 
to  pay  the  "ruling  market  rates," 
and  it  appeared  there  were  two 
market  rates,  one  for  goods  of  the 
kind  bought  of  importers  and  an- 
other for  them  as  sold  by  jobbers, 
it  was  held  competent  to  give  in 
evidence  the  conversation  of  the 
parties  and  the  surrounding  cir- 
cumstances for  the  purpose  of 
showing  which  of  the  two  was  in- 


tended by  the  parties.  Manchester 
Paper  Co.  v.  Moore,  104  N.  Y. 
680,  10  N.  E.  Rep.  861. 

66  Robinson  v.  United  States,  13 
Wall.  363;  Galland  v.  Kass,   152 
N.  Y.  Supp.  1074.    It  is  not  enough 
to  render  parol  evidence  compe- 
tent, that  there  are  circumstances 
known  to  one  of  the  parties,  but 
unknown  to  the  other,  which  might 
have  influenced  such  party  in  mak- 
ing a  contract,  but  to  create  an 
ambiguity  that  opens  such  a  con- 
tract   to    parol    explanation,     it 
must  be  established  by  proof  of 
circumstances  known  to  all  of  the 
parties    to    the    agreement,    and 
available  to  all,  in  selecting  the 
language  employed  to  express  their 
meaning.     Brady  v.  Cassidy,  104 
N.  Y.  147,  155-156,  10  N.  E.  Rep. 
131.     Where  an  ambiguity  in  a 
written  contract  is  created  by  ex- 
trinsic  evidence,   the   same   char- 
acter of  evidence  is  admissible  in 
order  to  solve  the  ambiguity.    Mc- 
Kee  v.  Dewitt,  12  App.  Div.  (N.  Y.) 
617. 

67  Moore  v.  Meacham,  10  N.  Y. 
207;  Agawam  Bank  v.  Stever,  18 
N.  Y.  502. 


ACTIONS    FOR    PRICE    OF   GOODS,    ETC. 


779 


to  be  a  complete  and  final  statement  of  the  whole  transaction, 
and  the  object  of  the  evidence  is  simply  to  establish  a  sepa- 
rate oral  agreement  on  a  matter  as  to  which  the  instrument 
is  silent68  and  which  is  not  contrary  to  its  terms;69  nor  to 


^Routledge  v.  Worthington,  116 
N.  Y.  592,  23  X.  E.  Rep.  1111. 
Extrinsic  evidence  is  not  admissible 
to  show  that  a  contract  was  partly 
written  and  partly  oral,  if  the 
matter  proposed  to  be  made  part 
of  the  contract  by  such  evidence  is 
inconsistent  with  the  terms  of  the 
writing.  Fawkner  v.  Smith  Wall 
Paper  Co.,  88  Iowa,  169,  45  Am. 
St.  Rep.  230, 55  N.  W.  Rep.  200. 

68  To  bring  a  case  within  the  rule 
admitting  parol  evidence  to  com- 
plete an  entire  agreement  of  which 
a  writing  is  only  a  part,  two  things 
are  essential:  First,  The  writing 
must  appear  on  inspection  to  be  an 
incomplete  contract;  and,  second, 
The  parol  evidence  must  be  con- 
sistent with  and  not  contradictory 
to  the  written  instrument.  Case 
T.  Phoenix  Bridge  Co.,  134  N.  Y. 
78,  81,  31  N.  E.  Rep.  254.  The 
only  criterion  of  its  completeness 
or  incompleteness  is  the  writing 
itself.  It  cannot  be  proved  to  be 
incomplete  by  going  outside  of  the 
writing,  and  proving  that  there  was 
an  oral  stipulation  entered  into  not 
contained  in  the  written  agreement. 
Wheaton  Roller-Mill  Co.  v.  Noye 
Mfg.  Co.,  66  Minn.  156,  68  N.  W. 
Rep.  854.  But,  while  the  writing 
itself  is  the  only  criterion,  it  is  not 
necessary  that  its  incompleteness 
should  appear  on  its  face  from  mere 
inspection.  It  is  to  be  construed, 
as  in  any  other  case,  in  the  light 
of  its  subject-matter,  and  the  cir- 


cumstances in  which,  and  the  pur- 
poses for  which  it  was  executed, 
which  evidence  is  always  admissible 
in  the  construction  of  written  con- 
tracts, in  order  to  put  the  court  in 
the  position  of  the  parties.  (Id.) 
"Undoubtedly  the  existence  of  a 
separate  oral  agreement  as  to  any 
matter  on  which  a  written  contract 
is  silent,  and  which  is  not  incon- 
sistent with  its  terms,  may  be 
proven  by  parol,  if  under  the  cir- 
cumstances of  the  particular  case 
it  may  properly  be  inferred  that 
the  parties  did  not  intend  the 
written  paper  to  be  a  complete 
and  final  statement  of  the  whole 
of  the  transaction  between  them. 
But  such  an  agreement  must  not 
only  be  collateral,  but  must  relate 
to  a  subject  distinct  from  that  to 
which  the  written  contract  applies; 
that  is,  it  must  not  be  so  closely 
connected  with  the  principal  trans- 
action as  to  form  part  and  parcel 
of  it.  And  when  the  writing  itself 
upon  its  face  is  couched  in  such 
terms  as  to  import  a  complete 
legal  obligation  without  any  un- 
certainty as  to  the  object  or  extent 
of  the  engagement,  it  is  conclusively 
presumed,  that  the  whole  engage- 
ment of  the  parties,  and  the  extent 
and  manner  of  their  undertaking, 
were  reduced  to  writing.  Greenl. 
Ev.  §  275."  Seitz  v.  Brewers'  Re- 
frigerating Mach.  Co.,  141  U.  S. 
510,  517.  A  memorandum  show- 
ing the  sale  of  a  specific  amount  of 


780 


THE    FACT   OF   SALE 


their  legal  effect,70  for  whatever  is  implied  is  a  part  of  the 
contract. 

7.  Where  the  object  of  the  evidence  is  to  show  a  usage 
legally  affecting  the  parties,  by  which  incidents  not  ex- 
pressly mentioned  hi  such  contracts  are  annexed  to  or  im- 
plied in  them,  if  the  usage  be  not  repugnant  either  to  the 
express  terms  or  the  legal  effect  of  the  contract.71 

8.  To  show,  if  the  contract  be  unsealed,  that  it  was  made 
for  the  benefit  and  on  behalf  of  the  party  suing  or  sued  upon 
it,  even  though  he  be  not  named  in  it;  or,  if  it  be  sealed,  that 
it  was  so  made,  and  has  been  duly  ratified  by  such  party.72 

9.  To  show  that  the  date  was  erroneous.73 

10.  To  show  that  the  consideration  was  different  from 
that  stated  (except  for  the  purpose  of  defeating  the  instru- 
ment),74 or  that  it  was  not  paid,  though  payment  was  ac- 
knowledged.75 


corn,  the  person  to  whom  sold, 
the  price  thereof,  and  the  time 
when  payment  is  to  be  made, 
signed  by  the  sellers,  constitutes 
a  contract  which  parol  evidence  is 
inadmissible  to  vary.  Bulwinkle  v. 
Cramer,  27  S.  C.  376,  13  Am.  St. 
Rep.  645,  3  S.  E.  Rep.  776. 
Whether  the  written  contract  fully 
expresses  the  terms  of  the  agree- 
ment is  a  question  for  the  court. 
Seitz  v.  Brewers'  Refrigerating 
Mach.  Co.,  141  U.  S.  510,  517. 

70  Heineman  v.  Heard,  39  N.  Y. 
98;  Blossom  v.  Griffin,  13  N.  Y. 
569;  Real  Estate  Title,  &c.  Com- 
pany's Appeal,  125  Penn.  St.  549, 
11  Am.  St.  Rep.  920,  17  Atl.  Rep. 
450.  Whatever  the  law  implies 
from  a  contract  in  writing  is  as 
much  a  part  of  the  contract  as  that 
which  is  therein  expressed,  and  if 
the  contract,  with  what  the  law 
implies,  is  clear,  definite  and  com- 


plete, it  cannot  be  added  to,  varied, 
or  contradicted  by  extrinsic  evi- 
dence. Fawkner  v.  Smith  Wall 
Paper  Co.,  88  Iowa,  169,  45  Am. 
St.  Rep.  230,  55  N.  W.  Rep.  200. 

71  See  paragraph  9. 

72  See  paragraphs  10-12. 

73  Draper  v.  Snow,  20  N.  Y.  331. 
And  so  it  seems  of  the  place  of 
execution.    Id. 

74  McCrea  v.  Purmort,  16  Wend. 
460,  affi'g  5  Paige,  620,  s.  P.,  16  X. 
Y.538.    Compare  Halliday  v.  Hart, 
30  N.  Y.  474. 

75  Bingham  v.  Weiderwax,  1  N. 
Y.   509;   Fire   Ins.   Association  v. 
Wickham,  141  U.  S.  564;  Juilliard 
v.  Chaffee,  92  N.   Y.   529;  Lake 
Roland  Elevated  Ry.  Co.  v.  Frick, 
86  Md.   259,  37  Atl.   Rep.  650; 
Wright  v.  Stewart,  19  Wash.  179, 
52  Pac.   Rep.    1020;   Donyook  v. 
Washington   Mill   Co.,    16   Wash. 
459,  47  Pac.  Rep.  964. 


ACTIONS   FOR    PRICE    OF   GOODS,    ETC.  781 

11.  To  show  that  a  transfer  absolute  on  its  face  was  given 
as  security 76  or  in  trust.77 

12.  To  show  the  mistake  which  caused  a  repugnancy 
appearing  on  the  face  of  the  instrument.78 

13.  Where  the  object  of  the  evidence  is  to  show  a  sepa- 
rate subsequent  valid  agreement  to  rescind,  modify,  extend,  or 
waive 79  the  contract  or  a  provision  of  it. 

The  rule  that  the  contract  cannot  be  varied  by  parol, 
when  it  is  applicable,  excludes  evidence  which  would  vary 
any  obligation  implied  by  law  from  its  terms,  as  well  as  that 
which  would  directly  vary  its  terms.80 

The  admissibility  of  oral  evidence  under  these  rules  is 
subject  to  the  qualification  that  oral  evidence  cannot  satisfy 
the  demand  of  the  statute  of  frauds  for  a  memorandum  in 
writing. 

9.  General  Rule  as  to  Proof  of  Usage. 

The  common-law  rule  excluding  oral  evidence  in  modifi- 
cation of  written,  depends,  so  far  as  contracts  are  concerned, 
upon  the  presumption  that  the  parties  intended  their  writ- 
ing to  define  their  rights  and  liabilities,  and  adopted  the 
writing  because  they  did  not  wish  to  leave  any  question  open 

76  Horn  v.  Keteltas,  46  N.  Y.  605.  traced  in  the  intention  of  the  par- 

77  Britton  v.  Lorenz,  45  N.  Y.  51,  ties.    The  deviation,  except  where 
affi'g  3  Daly,  23.  And  see  Chapter  otherwise   expressed    or    mutually 
XV.  understood,  must  be  taken  hi  its 

78  McNulty  v.  Prentice,  25  Barb,  proper  connection  with  the  original 
204.    .  contract,  with  reference  to  and  in 

79  Stockwell  v.  Holmes,  33  N.  Y.  modification  of  which  it  was  made. 
53;  Carroll  v.  Charter  Oak  Ins.  Co.,  McCauley  ».  Keller,   130  Pa.  St. 
1  Abb.  Ct.  App.  Dec.  316,  affi'g  53,  17  Am.  St.  Rep.  758,  18  Atl. 
40  Barb.  292;  Harris  v.  Murphy,  Rep.  607. 

119  N.  C.  34,  36,  25  S.  E.  Rep.  708;  »  La  Farge  v.  Rickert,  5  Wend. 

Calliope  Mining  Co.  v.  Herzmger,  187 ;  Thorp  v.  Ross,  4  Abb.  Ct.  App. 

21  Colo.  482,  42  Pac.  Rep.  668;  Dec.  416;  J.  W.  Ripy  &  Son  ». 

but  subject  to  the  statute  of  frauds.  Art  Wall  Paper  Mills,  41  Okl.  20, 

Shultz  v.  Bradley,  57  X.  Y.  646.  136  Pac.  Rep.  1080,  51  L.  R.  A.  N. 

In  such  cases  the  special  contract  S.  33. 
will  be  pursued  as  far  as  it  can  be 


782  .        THE   FACT   OF   SALE 

to  the  uncertainty  of  memory.  But  in  regard  to  commercial 
contracts,  especially  sales,  the  known  and  settled  usages  of 
business  are  relied  on  as  a  similar  safeguard;  and  from  the 
brevity  with  which  commercial  contracts  are  despatched, 
in  the  ordinary  course  of  trade,  arises  another  counter  pre- 
sumption to  the  effect  that  the  parties  did  not  intend  in 
their  memorandum  to  express  what  is  defined  by  the  usages 
of  the  trade,  but  only  those  parts  of  the  transaction  which 
usage  would  not  define,81  together  also  with  any  stipula- 
tions by  which  they  desired  to  depart  from  the  usage,  and 
make  for  this  transaction  a  different  rule.  The  same  prin- 
ciples are  involved  where  a  transaction  is  had  orally,  and 
usage  is  relied  on  to  define  its  effect.  Hence,  the  flxree  chief 
rules  as  to  what  usage  is  provable  to  establish  or  vary  a  con- 
tract of  sale. 

It  must  be,  1.  A  usage  which  the  parties  knew  or  ought 
to  have  known;  2,  one  which  is  consistent  with  the  general 
law  merchant;82  and  3,  not  incompatible,  either  with  the 
express  terms  of  their  contract,83  or  the  legal  obligations 
which  the  law  implies  from  those  terms. 

81  Button  v.  Warren,  1  Mees.  &  Legg,  102  N.  Y.  652,  6  N.  E.  Rep. 
W.  474;  Wigglesworlh  v.  Dallison,  107;   Atkinson   v.    Truesdell,    127 
1  Sm.  L.  Cas.  [675],  note  in  7th  N.  Y.  230,  27  N.  E.  Rep.  844.    It 
Am.  ed.  905.  is   not   competent   to   explain  by 

82  Local  usage  cannot  be  allowed  parol  the  terms  of  a  plain  written 
to  subvert  the  settled  rules  of  law.  order  for  goods,  by  showing  the 
Whatever   tends   to   unsettle   the  custom  among  merchants  in  order- 
law,  and  make  it  different  in  the  ing  that  class  of  goods.    Coates  v. 
different  communities  into  which  Early,  46  S.  C.  220,  24  S.  E.  Rep. 
the  State  is  divided  leads  to  mis-  305. 

chievous  consequences,  embarrasses  It  has  also  been  said  that  a  cus- 

trade,  and  is  against  public  policy,  torn  must  be  reasonable  and  just 

Barnard  v.  Kellogg,  10  Wall.  383.  in  order  to  be  recognized  by  the 

83  Custom  or  usage  cannot  con-  courts.     "The  plaintiff  attempted 
trol  the  legal  rules  applicable  to  to  prove  that  there  was  a  general 
the    construction    of    a    contract,  custom  among  merchants  and  ship- 
and   evidence   that  by  a  custom  pers  not  to  place  a  valuation  upon 
a  contract  means  something  dif-  merchandise  sent  by  express.    The 
ferent  from  what  its  terms  clearly  proof  of  such  a  custom  was  insuf- 
import  is  inadmissible.     Bigelow  v,  ficient,  but  had  it  been  proved  to 


ACTIONS   FOR    PRICE    OF   GOODS,    ETC. 


783 


One  who  is  engaged  in  a  trade  or  business  is  bound  to 
know  its  usages  at  the  place  where  he  acts,  and  as  against 
himself  is  presumed  by  law  to  have  contracted  with  refer- 
ence to  them.84 

One  who  is  not  engaged  hi  the  business,  but  contracts 
with  those  who  are,  may  be  presumed,  in  the  absence  of 
evidence  to  the  contrary,  to  have  known  its  usages,  and  to 
have  contracted  with  reference  to  them; 85  but  the  presump- 
tion is  not  conclusive,  and  he  may  prove  his  ignorance,  even 
by  his  own  testimony.86 

Usage  must  be  excluded,  not  only  when  adduced  for  the 
purpose  of  nullifying  rules  of  law,  but  equally  when  offered 
for  the  purpose  of  establishing  presumptivly  a  stipulation 
which  would  be  valid  if  expressly  made,  but  which  is  con- 
trary to  the  implication  which  the  commercial  law  draws 
from  the  stipulations  the  parties  have  expressed.87 


be  a  general  custom  it  should  not 
be  adopted  by  the  courts  as  a  rule 
of  law,  for  no  custom,  however  gen- 
eral, will  be  so  engrafted  into  the 
law  unless  it  be  reasonable  and 
just.  It  is  neither  reasonable  nor 
just  for  shippers  to  deliver  goods 
to  a  carrier  on  behalf  of  their  con- 
signees under  contracts  which  fail 
to  indemnify  them  and  destroy 
their  right  of  recovery  for  loss  of 
the  goods  so  consigned."  Miller  v. 
Harvey,  83  Misc.  59,  144  X.  Y. 
Supp.  624. 

84  Robinson  v.  United  States,  13 
Wall.  363.  The  courts  will  take 
notice  of  the  usual  and  customary 
manner  in  which  general  commer- 
cial business  is  carried  on,  and  that 
in  the  purchase  of  grain  or  other 
commodity  the  purchaser,  as  a 
rule,  is  governed  by  the  latest 
available  quotation.  Nash  «.  Clas- 
sen, 163  111.  409, 45  X.  E.  Rep.  276. 


85  Walls  v.  Bailey,  49  N.  Y.  464, 
and  cases  cited.    Compare  White- 
house  v.  Moore,  13  Abb.  Pr.  142. 
The  extension  of  this  doctrine  is 
disapproved  in   Partridge  v.   Ins. 
Co.,  15  Wall.  573. 

86  Walls  v.  Bailey  (above).    And 
the    same    presumption    may    be 
applied  in  respect  to  the  usage  or 
custom  of  the  contracting  parties. 
Dunbar  v.  Pettee,  1  Daly,  112. 

87  Thus,  where  in  a  sale  of  chat- 
tels by  one  not  the  maker  or  grower, 
and  not  guilty  of  fraud,  and  to  a 
buyer  having  opportunity  to  ex- 
amine,  the  law  implies  no  war- 
ranty,  evidence   of  usage  is  not 
competent  to  import  a  warranty 
into    the    contract.      Barnard    v. 
Kellogg,   10  Wall.  388   (BRADLEY 
and  STRONG,  JJ.,  dissented).    See 
Miller  v.    Harvey,    83    Misc.   59, 
144  N.  Y.  Supp.  624;  Dickinson 
v.   Gay,    11   Allen,   29;   Benj.   on 


784  THE   FACT   OF   SALE 

Usage  of  language  in  a  trade  may  sometimes  be  competent 
when  evidence  of  other  usages  of  the  trade  would  not;  for 
where  the  usage  is  adduced,  not  so  much  to  supply  what  is 
unexpressed,  as  to  show  the  meaning  of  what  is  expressed, 
a  further  principle  is  involved,  viz.,  that  it  is  always  com- 
petent to  show  by  parol  the  usages  of  language  of  those  who 
adopted  the  writing;  and  thus  what  it  was  in  their  knowledge 
that  its  terms  referred  to.88  Hence,  although  the  terms  used 
be  apparently  unambiguous,  evidence  is  competent  to  show 
that  in  the  usage  of  language  in  the  trade  or  business  in 
which  the  words  were  employed,  they  had  a  different  mean- 
ing.89 

As  to  the  mode  of  its  proof, — a  usage  of  trade  cannot  be 
proven  by  the  understanding  or  opinions  of  witnesses  as  to 
the  law,  or  what  should  be  the  rule,90  but  the  witnesses 
should  testify  to  the  existence  of  the  usage,  which,  if  they 
are  qualified,  they  may  do  either  from  their  own  knowledge 
and  experience  of  it,  or  from  information  derived  through 

Sales,    §  215,    and    see    11    Allen,  the  strictest  rules  of  interpretation, 

426.  to  show  the  usages  of  speech  and 

88  See  paragraphs  8  and  9.    Evi-  expression  habitual  to  the  writer, 
dence   of   usage   is   admissible   to  Evidence  of  what  he  meant  in  the 
apply  a   written   contract  to  the  contract   by  a   certain  expression 
subject-matter   of   the   action,   to  is   not    competent;    but   evidence 
explain  expressions  used  in  a  par-  that   he  was   accustomed   to   use 
ticular  sense  by  particular  persons  that    expression    in    a    particular 
as  to  particular  subjects  and  to  sense,  is;  and  on  the  same  principle, 
give  effect  to  language  in  a  con-  evidence  that  the  trade  in  which 
tract  as  it  was  understood  by  those  he  was  engaged  was  accustomed 
who  made  it.      Smith   v.   Clews,  to  use  it  in  a  particular  sense,  is 
114  N.  Y.  190, 21  N.  E.  Rep.  160.  competent;    and   when   such   evi- 

89  Myers  v.  Sari,  30  L.  J.  Q.  B.  9,  dence  has  been  given,  the  court 
s.  c.,  7  Jur.  N.  S.  97.    For  instances  will  read  the  expression  in  the  con- 
see  paragraphs  8  and  9.    The  cases  tract  in  the  light  which  the  usage 
which  exclude   usage  adduced  to  throws  upon  it. 

explain    wambiguous    terms    (see         "Allen  v.  Merchants'  Bank  of 

Ins.  Co.  v.  Wright,  1  Wall.  456,  and  N.  Y.,  22  Wend.  215,  and  see  15 

see  15  Id.  573,  affi'g  1  Dill.  139),  Id.    482;    Hawes   v.    Lawrence,   3 

do    not    overthrow    the    principle  Sandf.  193,  affi'd  in  4  N.  Y.  345; 

that  it  is  always  competent  under  Collyer  v.  Collins,  17  Abb.  Pr.  467. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  785 

others  in  the  course  of  trade.91  The  testimony  of  a  single 
witness  is  not  insufficient  to  prove  a  usage  of  trade,  if  he  has 
full  knowledge  and  long  experience  on  the  subject,  and 
testifies  explicitly  to  the  necessary  extent  and  duration  of 
the  usage,  and  is  uncontradicted.92  A  reported  case  in  which 
the  court  held  a  commercial  usage  to  be  established  by  evi- 
dence, is  relevant  in  other  cases  between  other  parties,  in- 
volving the  usage  at  the  same  place,93  and  within  reasonable 
limits  of  proximity  in  tune. 

Cogent  evidence,  however,  is  necessary  to  establish  the 
existence  of  a  usage  of  trade;94  it  ought  to  be  so  clear  as  to 
leave  no  doubt  that  the  parties  contracted  in  reference  to 
it.95  If  the  usage  is  that  of  an  individual,  actual  knowledge 
must  be  proved.96 

10.  Plaintiff  the  Real  Party  in  Interest,  though  not  so 
Named  in  the  Contract. 

Whatever  may  have  been  the  form  of  the  contract,  unless 
under  seal,  and  even  in  that  case  if  it  has  been  ratified  by 

81  Allen    v.     Merchants'     Bank  93  NELSON,  J.,  in  Allen  v.  Mer- 

(above),  NELSON,  J.    But  compare  chants'  Bank  (above).    Otherwise, 

Mills  v.  Hallock,  2  Edw.  652.    A  if  the  decision  proceeded  on  the 

custom   or   usage   is   a  fact  that  concession  of  the  parties  that  the 

may  be  stated  by  a  witness  in  the  usage    existed.      Crouch    v.    The 

first  instance,  without  stating  the  Credit  Foncier  of  England,  L.  R. 

incidents  or  instances  within  his  8  Q.  B.  374,  s.  c.,  6  Moak's  Eng. 

knowledge   by   which   he   became  108.     How  far  decisions  of  State 

possessed  of  the  knowledge  of  the  courts  are  evidence  in  the  United 

custom,  the  same  as  he  may  testify  States  courts,  of  commercial  usage, 

as  to  the  general  reputation  of  a  see  Meade  v.  Beale,  Taney,  339, 

witness.     Conner   v.   Citizens   St.  359. 

Ry.  Co.,  146  Ind.  430, 442, 45  N.  E.  94  Citizens'  Bank  of  Baltimore  e. 

Rep.  662.  Grafflin,  31  Md.  507,  s.  c.,  1  Am. 

92  Robinson  v.  United  States,  13  Rep.  66;  Randall  v.  Smith,  18  Am. 

Wall.  363;  Vail  v.  Rice,  5  N.  Y.  Rep.  200,  note  207. 

155.  9i  Dawson  v.  Kittle,  4  Hill,  107; 

Whether  the  evidence  proves  a  and  see  Goodyear  v.  Ogden,  Id.  104. 

custom  is  a  question  for  the  jury.  ^Gamble  v.  Stauber  Mfg.  Co., 

Robeson  v.  Pels,  202  Pa.  399,  51  50  Neb.  463,  465,  69  N.  W.  Rep. 

Atl.  Rep.  1028.  960. 


786  THE    FACT   OF   SALE 

the  plaintiff,97  the  plaintiff  may  show,  even  by  oral  evidence, 
that  a  party  who  executed  it,  although  apparently  as  the 
principal,  did  so  as  the  agent  of  the  plaintiff;  and  upon  such 
evidence  the  plaintiff  may  recover,  notwithstanding  the  stat- 
ute of  frauds  applies  to  the  contract,  and  requires  it  to  be 
in  writing;98  subject  to  any  question  of  counterclaim  or  set- 
off  arising  from  defendant's  dealings  with  the  agent  in 
ignorance  of  his  agency.  So,  where  one  carries  on  business, 
and  sells  goods  therein  in  the  name  of  another  (although  for 
his  own  account),  the  promise  to  pay  may  be  presumed  to 
have  been  made  to  the  one  in  whose  name  the  business  was 
done; "  and  he  therefore  may  recover  thereon;  although  the 
one  by  whom  the  sale  was  made  might  equally  recover  if 
the  other  did  not  object.1 

Where  the  plaintiff  was  the  defendant's  agent,  and  os- 
tensibly acted  as  such,  he  cannot  convert  his  position  into 
that  of  a  principal  to  sell  to  his  employer,  even  by  evidence 
of  a  usage  of  trade,  unless  he  also  shows  that  defendant  knew 
and  assented  to  the  dealing  on  the  footing  of  such  a  usage.2 

97  Briggs  v.  Partridge,  64  N.  Y.  to  be  given  under  the  terms  of  a 
357,  and  cases  cited.  written  contract  to  "J.  S.,  presi- 

98  Ballard  v.  Friedeberg,  164  N.  dent  of  the  Eastern  Railroad  Com- 
Y.  Supp.  912;  Hubbert  v.  Borden,  pany,"  in  payment  for  iron  sold, 
6    Whart.    (Penn.)    79;    Nash    v.  — Held,  that  the  company  suing 
Toune,  5  Wall.  703;  Salmon  Falls,  could  prove  that  the  iron  belonged 
&c.  Co.  v.  Goddard,  14  How.  U.  S.  to  it,  and  that  its  president  acted 
446;  Eastern  R.  R.  Co.  v.  Benedict,  merely  as  its  agent  in  the  trans- 
5  Gray,  561;  Alexander  v.  Moore,  action,  and  that  it  could  maintain 
19  Mo.  143,  Benj.  on  S.,  §§210,  the  action  in  its  own  name.    East- 
219,    n.;    and    see    paragraph    8,  ern  Railroad   Co.   v.   Benedict,   5 
and  cases  cited.     The  rule  is  the  Gray,  561,  Benj.  on  S.,  §  219,  n. 
same  whether  the  agency  was  dis-  "  Alsop  v.  Games,  10  Johns.  396, 
closed    in   the    contract,    or   only  affi'd    as    Caines    v.    Brisban,    13 
orally,  or  not  at  all;  and  whether  Id.  9. 

defendant    was    seller    or    buyer.          l  Gardiner  v.  Davis,  2  C.  &  P. 

Same  cases.    For  a  strong  case  of  49,  ABBOTT,  J.    Compare  Paddon  v. 

presumption    of    ratification,    see  Williams,    1    Robt.   340,   s.    c.,   2 

Hampton    v.     Rouse,     22     Wall.  2   Abb.   Pr.   N.    S.   38;   Howe   v. 

272.  Savory,  49  Barb.  403. 
In  an  action  to  recover  for  stock          -  Robinson  v.  Mollett,  L.  R.   7 


ACTIONS   FOR    PRICE    OF    GOODS,    ETC. 


787 


11.  Purchase  by  Defendant's  Agent. 

An  allegation  of  sale  to  defendant  will  admit  evidence  of 
a  sale  to  his  agent,  and  of  the  agent's  authority.3  The  three 
elements  in  the  proof  of  purchase  by  an  agent  are,  the  fact 
that  an  agency  existed,4  that  the  scope  of  the  agent's  au- 


H.  of  L.  802,  815,  s.  c.,  14  Moak's 
Eng.  177,  189. 

3  For    the    distinction    between 
general    and    special    agency,    see 
Butler  v.  Maples,  9  Wall.  766,  and 
5    Abb.    N.    Y.    Dig.,    new    ed. 
243. 

4  Agency  and  the  extent  of  the 
power  of  an  agent,  are  questions  of 
fact,  and  may  be  established  by 
parol  proof,  except  in  those  cases 
where  a  written  authorization  is 
expressly  required  by  positive  law, 
and  may  also  be  established  by 
circumstantial     evidence.       Berg- 
tholdt  v.  Porter  Bros.  Co.,  114  Cal. 
681,  46  Pac.  Rep.  738.    When  the 
defense  in  an  action  for  goods  sold 
and  delivered  to  an  agent  of  the 
defendant  is  a  denial  that  any  such 
sale  was  made,  the  burden  is  on 
the  plaintiff  throughout  the  case  to 
prove  every  essential  part  of  the 
transaction,  including  the  authority 
of  the  alleged  agent  to  make  the 
alleged   purchase    hi   the   manner 
alleged.      Schutz    v.    Jordan,    141 
U.  S.  213.    "A  party  who  seeks  to 
charge  a  principal  for  the  contracts 
made  by  his  agent  must  prove  that 
agent's  authority;  and  it  is  not  for 
the  principal  to  disprove  it.    The 
burden  is  on  the  plaintiff.     The 
plaintiffs  would  not  contend  that 
they  had  made  out  a  cause  of  ac- 
tion  against   the   defendants,   by 
proving  that  Hewes  had  made  a 


purchase  hi  their  name.  Of  course 
they  must  go  further,  and  prove 
that  he  had  authority  to  purchase; 
and  they  must  also  prove  that  the 
purchase  was  within  the  authority 
conferred.  Authority  to  buy  one 
class  of  goods  would  not  be  author- 
ity to  buy  another  and  entirely 
different  class.  Authority  to  buy 
hi  the  usual  course  of  business 
would  not  be  authority  to  buy 
outside  of  that  course  of  business. 
And  when  they  rely  upon  contracts 
made  with  Hewes  the  burden  is 
on  them,  and  continues  on  them, 
to  establish  the  contract  which 
in  fact  was  made,  and  that  it.  was 
within  the  scope  of  his  authority 
as  agent."  Id.  Where  circum- 
stantial evidence  is  resorted  to  for 
the  purpose  of  establishing  an 
agenc}',  or  the  facts  and  circum- 
stances showing  the  relation  of  the 
parties,  and  throwing  light  upon 
the  character  of  such  relation,  are 
admissible  in  evidence.  Berg- 
tholdt  v.  Porter  Bros.  Co.,  114 
Cal.  681,  46  Pac.  Rep.  738. 

One  partner  cannot  bind  the 
partnership  for  the  price  of  goods 
which  he  purchased  for  his  own 
private  purposes.  In  order  to 
hold  the  partnership  on  such  a 
transaction,  plaintiff  is  bound  to 
prove  the  authority  of  the  pur- 
chasing partner  to  bind  the  firm. 
Vinegar  Bend  Lumber  Co.  v. 


788 


THE    FACT   OF   SALE 


thority  extended  to  such  a  transaction  as  that  in  question; 
and  that  in  the  transaction  he  acted  as  agent  and  on  account 
of  the  defendant.5  In  the  absence  of  direct  evidence,  the 
existence  of  an  agency  may  be  inferred  by  the  jury,  from 
the  fact  that  the  supposed  agent  was  continuously  acting 
in  the  service  of  the  defendant  in  the  business  in  which  the 
transaction  was  had;6  and  the  scope  of  his  authority  may 
be  inferred  from  the  nature  of  his  usual  service.7  The  acts 
and  declarations  of  the  agent  cannot  alone  establish  the  fact 
of  agency8  nor  the  scope  of  his  authority;  but  there  must 
Howard,  Hooks,  &  Henson,  186  unless  the  party  tendering  the 


Ala.  451,  65  So.  Rep.  172. 

5  See  Beals  v.  Merriam,  11  Mete. 
470. 

6  Compare       Verona       Central 
Cheese  Co.  v.  Murtagh,  50  N.  Y. 
214,  rev'g  4  Lans.  17;  and  Chapter 
XII,    paragraph    7,  and    Chapter 
XV,    paragraph    5,    of    this    vol.; 
Bankers  Life  Ins.  Co.  v.  Robbins, 
53  Neb.  44,  73  N.  W.  Rep.  269. 
See-  Memphis,    etc.,    R.    Co.    v. 
Atlas  Powder  Co.,  123  Ark.  620, 
185  S.  W.  Rep.  786. 

7  See  Id.;  and  Larter  v.  Am.  Fe- 
male  Guard.   Soc.,    1   Robt.   598. 
Principals    having    held    out    an 
agent,  who  paid  for  purchases  in 
checks  signed  as  agent,  held  liable 
for  his  purchases  on  credit.    Morey 
v.  Webb,  58  N.  Y.  350,  affi'g  65 
Barb.  22. 

The  general  authority  of  a  sew- 
ing machine  salesman  gave  him  no 
apparent  authority  to  enter  into 
an  agreement  binding  his  princi- 
pal to  resell  the  machines  for  the 
purchaser,  on  commission.  Fore- 
hand v.  White  Sewing  Machine  Co., 
195  Ala.  208,  70  So.  Rep.  147. 

8  Such  declarations  ought  not  in 
any  event  be  received  in  evidence, 


same  offers  in  good  faith  to  supple- 
ment them  by  other  and  independ- 
ent evidence  of  the  agency;  and 
if  such  offer  is  not  made  good, 
the  declarations  ought  to  be  ex- 
cluded from  consideration  by  the 
jury.  The  safer  and  better  prac- 
tice in  all  cases,  is  to  require  proof 
of  the  agency  before  admitting 
such  declarations  at  all.  But  the 
error  in  admitting  evidence  re- 
lating to  transactions  with  one 
who  had  not  been  shown  to  be  an 
agent  is  cured  by  subsequent  proof 
of  the  agency.  Phoenix  Assurance 
Co.  v.  McAuthor,  116  Ala.  659, 
22  So.  Rep.  903;  Abel  v.  Jarratt, 

100  Ga.  732,  28  S.  E.  Rep.  453. 
And    the    order    in    which    the 
evidence  is  admitted  is  not  sub- 
ject to  review.     C.   &   C.   Elect. 
Motor  Co.  v.  D.  Frisbie  &  Co.,  66 
Conn.  67,  33  Atl.  Rep.  604.     An 
agency  cannot  be  established  by 
the    declarations    of    the    alleged 
agent,  but  must  be  proved  aliunde. 
Taylor  v.  Hunt,  118  N.  C.  168,  24 
S.  E.  Rep.  359;  Lakeside  Press, 
&c.  Co.  v.  Campbell,  39  Fla.  523, 
22  So.  Rep.  878;  Wynne  v.  Stevens, 

101  Ga.  808,  28  S.  E.  Rep.  1000; 


ACTIONS   FOR    PRICE    OF   GOODS,    ETC. 


789 


either  be  independent  evidence  on  those  points,  or  there 
must  be  something  to  connect  defendant  with  the  particular 
act  or  declaration  relied  on,  so  as  to  render  it  competent 
against  him  without  first  assuming  the  existence  of  the  rela- 
tion it  is  sought  to  prove.9 

Evidence  of  the  habit  and  course  of  dealing  is  competent 
to  bind  the  defendant,  by  showing  his  subsequent  ratifica- 
tion of  the  transaction,  whether  there  is  original  authority 
or  not.10  The  principle  is  recognized  that  where  an  act  is 
done  by  one  person  for  the  benefit  of  another,  though  with- 
out authority,  the  latter  may  be  presumed  in  furtherance 
of  justice  to  have  ratified  it,  and  may  take  the  benefit  of  it 
as  against  third  persons.11  In  cases  where  there  is  no  evi- 
dence of  original  authority,  the  party  relying  on  ratification 
must  show  that  the  principal  after  having  knowledge  of  all 
the  material  facts,  expressly  or  tacitly  acquiesced;12  but 
intent  to  ratify  need  not  be  shown.13  Mere  silence,  under 


Richardson  &  Boynton  Co.  v. 
School  District  No.  11,  45  Neb. 
777,  64  N.  W.  Rep.  218;  Dicker- 
man  v.  Quincy  Mut.  Fire  Ins.  Co., 
67  Vt.  609,  32  Atl.  Rep.  489; 
Fisher  v.  White,  94  Va.  236,  26 
S.  E.  Rep.  573;  Anheuser  Busch 
Brewing  Assoc.  v.  Murray,  47 
Neb.  627,  66  X.  W.  Rep.  635. 
Though  agency  cannot  be  proved 
by  declarations  of  the  alleged  agent; 
yet  he  is  a  competent  witness  to 
prove  it,  and  his  testimony  cannot 
be  restricted  to  the  mere  words 
used  by  the  principal,  but  is  ad- 
missible generally  on  the  whole 
subject.  Lawall  v.  Groman,  180 
Pa.  St.  532,  542,  37  Atl.  Rep.  98; 
Nyhart  v.  Pennington,  20  Mont. 
158,  162,  50  Pac.  Rep.  413. 

The  agent  may  testify  as  to 
whether  his  contract  with  the 
principal  was  in  force  at  a  certain 


time;  and,  if  it  was  not  in  force, 
when  it  was  terminated.  But  he 
cannot  testify  as  to  the  "reason 
why"  the  contract  was  "taken 
away"  from  him.  Shepherd  v. 
Butcher  Tool,  etc.,  Co.,  73  So.  Rep. 
(Ala.)  498. 

'Howard  v.  Norton,  65  Barb. 
161,  s.  P.,  Stringham  v.  St.  Nicho- 
las Ins.  Co.,  4  Abb.  Ct.  App.  Dec. 
322.  See  this  principle  more  fully 
discussed  in  Chapter  IX,  para- 
graphs 13,  14,  and  32  of  this  vol. 

10  2  Greenl.  Ev.,  13th  ed.  51. 

"Hampton  v.  Rouse,  22  Wall. 
274.  Factor  is  trustee  of  express 
trust.  Ladd  v.  Arkel,  37  Super. 
Ct.  (5  J.  &  S.)  35. 

14  Id.  53;  Booth  v.  Bierce,  38 
N.  Y.  463,  rev'g  40  Barb. 
114. 

18  Hazard  v.  Spears,  2  Abb.  Gt. 
App.  Dec.  353. 


790  THE    TACT   OF    SALE 

knowledge,  only  raises  a  presumption  of  ratification  14  after 
the  lapse  of  a  reasonable  time  for  dissenting.  Where  the 
alleged  agent  was  a  mere  stranger,  intermeddling,  the  silence 
of  the  alleged  principal  does  not  raise  a  legal  presumption 
of  ratification;  but  at  most  is  a  circumstance  for  the  jury.15 
The  agency  having  been  sufficiently  shown,  the  fact  that 
the  transaction  was  done  by  the  alleged  agent  for  and  on 
account  of  the  defendant,  may  be  shown  by  evidence  of  the 
admissions,  declarations,  and  representations  made  by  the 
agent  in  the  performance  of  the  transaction : 16  and  such  evi- 
dence is  then  competent  for  any  other  purpose  equally  as 
would  be  the  declarations  of  the  principal  himself.  Whether 
there  is  sufficient  proof  of  an  agency  to  warrant  the  admission 
of  the  acts  and  declarations  of  the  agent  in  evidence  against 
the  principal,  is  a  preliminary  question  for  the  court  to  de- 
termine.17 If  authority  from  defendant  to  pledge  his  credit 
is  shown,  it  is  not  necessary  to  show  that  he  had  a  beneficial 
interest  in  the  business.  On  a  sale  to  an  agent  of  a  known 
principal,  the  agent  being  insolvent,  and  doing  business  in 
the  principal's  name  by  the  latter's  permission,  the  presump- 
tion is  that  the  seller  gives  credit  to  the  principal,  not  to  the 

14  Whether  this  presumption,  in  16  Howard  v.  Norton,  65  Barb, 

the  case  of  agency,  is  one  of  law,  161. 

or  merely  of  fact,  is  disputed,  see  "  Cliquot's  Champagne,  3  Wall. 

27  Wise.  135,  and  cases  cited.  114;   Dickerman  v.   Quincy  Mut. 
"  P.  W.,  &c.  R.  R.  Co.  v.  Powell,  Fire  Ins.  Co.,  67  Vt.  609,  32  Atl. 

28  Penn.  St.   366;  whether  it  is  Rep.  489.    Compare  Chapter  VII, 
even  that,  is  questioned  by  DIXON,  paragraph   10  and  notes  thereto, 
J.,  hi  27  Wise.  135.     Ratification  of  this  vol.    The  declarations  of  an 
of  an  unauthorized  act,  to  be  bind-  agent  are  admissible  only  when  the 
ing,  must  be  made  with  full  knowl-  existence  of  the  agency  has  been 
edge  of  all  material  facts;  and  when  satisfactorily  established  by  other 
.a    party    relies    upon    ratification  competent   evidence.     Bennett    r. 
by    acquiescence,    the    burden    is  Talbot,  90  Me.  229,  38  Atl.  Rep. 
upon  him  to  prove  it — knowledge  112;  Postal  Telegraph  Cable  Co. 
of  all  material  facts  being  an  es-  v.   Lenoir,    107   Ala.   640,    18   So. 
sential    element    thereof.      Moore  Rep.    266;    Forehand    v.    White 

.v.  Ensley,  112  Ala.  228,  20  So.  Rep.      Sewing  Machine  Co.,  195  Ala.  208, 
744.  70  So.  Rep.  147. 


ACTIONS    FOR   PRICE    OF   GOODS,    ETC.  791 

agent.  One  who  permits  another  to  use  his  name  thus  is 
liable  for  the  debts,  although  he  has  no  beneficial  interest  in 
the  business.18 

If  it  be  shown  by  plaintiff  that  he  had  been  previously 
in  the  habit  of  dealing  with  the  principal  through  the  agent 
in  question,  and  defendant  relies  on  a  revocation  of  the 
authority,  he  must  show  actual  notice  of  the  termination 
of  the  agency,  either  directly  or  by  presumptive  evidence; 
or  circumstances  which  constitute,  as  matter  of  law,  con- 
structive notice,  must  be  shown.19 

12.  Defendant  Liable  as  Undisclosed  Principal. 

Plaintiff  need  not  show  that  he  knew  he  was  dealing  with 
defendant.  Not  only  where  he  knew  that  the  apparent 
buyer  was  an  agent  for  defendant,20  or  for  an  undisclosed 
principal,21  but  equally  when  he  supposed  the  one  with  whom 
he  dealt  to  be  dealing  for  himself,22  he  may,23  after  discover- 
ing that  the  latter  was  merely  an  agent  for  defendant,  elect 
to  proceed  against  defendant,  unless,24  with  knowledge  that 
he  was  dealing  with  an  agent,  he  elected  to  give  credit  to 
him  personally  instead  of  relying  on  the  agency,25  or  unless, 
after  acquiring  full  knowledge  as  to  the  true  principal  and 

18  Ferris  v.  Kilmer,  48  N.  Y.  300.      349;   McMonnies  v.   Mackay,   39 

19  Claflin  v.  Lenheim,  66  N.  Y.      Barb.  561 

301,  rev'g  5  Hun,  269.  23  Within    a    reasonable    time. 

20  Hubbert  v.  Borden,  6  Whart.  Smethhurst  v.  Mitchell,  1  E.  &  E. 
(Perm.)  79,  91.  622. 

21  Truman  v.  Loder,   11  Ad.  &  2<  The  leading  case  is  Thompson 
El.  589.     If  the  principal  is  not  v.  Davenport,  9  B.  &  C.  78,  86. 
disclosed  at  the  time  the  contract  "Addison     v.     Gandasequi,     4 
is   signed,   parol   evidence   is   ad-  Taunt.  574;  Patterson  v.  Ganda- 
missible  to  show  the  agency  of  the  sequi,    15    East,    62;    Meeker    v. 
signer,  and  to  charge  the  princi-  Claghorn,  44  N.  Y.  349;  Rowan  v. 
pal;  but  if  in  fact  the  agency  is  Buttman,  1  Daly,  412,  and  cases 
disclosed    when    the    contract    is  cited;  McMonnies  v.  Mackay,  39 
signed,  then  such  evidence  is  not  Barb.  561;  Ranken  v.  Deforest,  18 
admissible.      Heffron    v.    Pollard,  Id.    143.     And    see    Inglehart    v. 
73  Tex.  96,  15  Am.  St.  Rep.  764,  Thousand  Isle  Hotel  Co.,  7  Hun, 
11  S.  W.  Rep.  165.  547.     The  fact  that  he  knew  he 

22  Meeker  v.  Claghorn,  44  N.  Y.  was  dealing  with  an  agent  is  not 


792 


THE    FACT   OF   SALE 


the  power  of  electing,  he  has  clearly  and  unquestionably 
elected  to  treat  the  agent  as  alone  his  debtor.26  Suing  the 
agent  to  judgment,  under  such  circumstances,  is  conclusive 
evidence  of  election.27  The  question  whether  he  originally 
elected  to  give  credit  to  the  agent  is  one  of  intention,  usually 
to  be  determined  by  the  jury  as  a  question  of  fact.28  The 
fact  that  the  contract  of  sale  was  in  writing  (if  not  sealed29) 
does  not  exclude  oral  evidence  that  defendant  was  the  un- 
disclosed principal  of  the  apparent  buyer,  ^  even  where  the 
statute  of  frauds  requires  a  writing; 31  and  such  evidence  is 
competent,  even  though  it  does  not  appear  in  the  body  of 
the  instrument  nor  in  the  signature  that  the  signer  acted  as 
agent.32  In  the  absence  of  such  evidence,  the  mere  fact  that 
the  apparent  buyer  was  an  agent  and  signed  with  the  addi- 
tion of  agent,  is  not  enough.33 

357,  affi'g  39  Super.  Ct.  (J.  &  S.) 
339. 

30Higgins  v.  Senior,  8  Mees.  & 
W.  834,  844,  s.  P.,  Ford  v.  Williams, 
21  How.  U.  S.  287;  Coleman  v.  First 
Nat.  Bank  of  Elmira,  53  N.  Y. 
388;  Powell  v.  Wade,  109  Ala.  95, 
97,  19  So.  Rep.  300.  In  such  an 
action,  the  burden  of  proof  lies 
on  the  principal  to  show  the  agency, 
and  that  in  the  making  of  the  con- 
tract the  agent  was  acting  for  him. 


alone  enough,  see  53  N.  Y.  388, 
394. 

28  Curtis  v.  Williamson,  10  Q.  B. 
57,  s.  c.,  11  Moak's  Eng.  149. 

"Priestly  v.  Fernie,  3  H.  &  C. 
977,  s.  P.,  Morris  v.  Rexford,  18 
N.  Y.  552;  Rodermund  v.  Clark, 
46  Id.  354;  Goss  v.  Mather,  2 
Lans.  283,  46  N.  Y.  689.  But  the 
mere  filing  an  affidavit  of  proof 
against  the  agent's  estate  in  in- 
solvency is  not;  though  it  may  be 
evidence  to  go  to  the  jury.  Curtis 
v.  Williamson,  L.  R.  10  Q.  B.  57, 
s.  c.,  11  Moak's  Eng.  149. 

28  Green  v.  Hopke,  18  C.  B.  349, 
and  cases  cited.  As  to  the  case  of 
foreign  principal,  see  the  opposing 
rules  in  Kirkpatrick  v.  Stainer,  22 
Wend.  244,  259;  Button  t>.  Bul- 
lock, L.  R.  8  Q.  B.  331  s.  c.,  6 
Moak's  Eng.  89;  9  Id.  572  s.  c., 
10  Moak,  184;  Armstrong  v. 
Stokes,  7  Id.  598  s.  c.,  3  Moak, 
217. 

MBriggs  v.  Partridge,  64  N.  Y. 


Id. 

31  Higgins  v.  Senior,  8  Mees.  & 
W.  834,  844;  Dykers  v.  Townsend, 
25  N.  Y.  57,  Benj.  on  S.,  §  218. 

32  Ford    v.     Williams     (above) ; 
Lerned    v.    Johns,    9    Allen,    419, 
Benj.    on    S.,    §219,    n.      Contra, 
Fenly  v.  Stewart,  5  Sandf.  101,  s. 
c.,  10  N.  Y.  Leg.  Obs.  40;  Auburn 
City  Bank  v.  Leonard,  40  Barb. 
119;  Babbett  v.  Young,  51  Id.  466. 

38  See   De   Witt   v.    Walton,   9 
N.  Y.  571. 
When  a  written  contract  is  made 


ACTIONS    FOR    PRICE    OF   GOODS,    ETC. 


793 


In  these  cases,  however,  in  so  far  as  defendant  can  show 
that  to  compel  him  to  pay  would  change  the  state  of  the 
accounts  between  him  and  his  agent  to  his  prejudice,  plain- 
tiff cannot  recover  of  him.34 

13.  Defendant  Liable  though  Acting  as  Agent. 

In  an  action  on  a  contract  made  by  defendant  in  his  own 
name,35  although  it  appear  that  he  acted  as  agent,  plaintiff 
may  recover  against  defendant  as  a  principal,36  provided, 
however,  that  if  it  appear  that  not  only  the  fact  of  his  agency, 
but  also  the  name  of  his  principal,37  was  disclosed  at  the 
tune  of  making  the  contract,38  plaintiff  must  show  39  that 
he  gave  credit  exclusively  to  the  defendant,40  or  that  de- 
fendant had  not  at  the  time  41  the  authority  he  assumed  to 
have 42  or  that  he  has  received  from  the  principal  the  fund 
to  be  recovered.43  If  he  simply  disclosed  his  agency  with- 
out naming  a  principal,  the  presumption  is,  in  the  absence 
of  other  evidence,  that  credit  was  given  to  him,  not  to  the 


in  the  name  of  a  principal,  and 
signed  in  his  name  by  another  as 
liis  agent,  it  is  not  competent  to 
show  by  parol  evidence  in  order 
to  recover  on  the  contract,  that  in 
signing  it,  the  one  who  purported 
to  sign  it  as  agent  signed  the  name 
of  the  principal  for  his  own  bene- 
fit, with  intention  to  bind  himself. 
Heffron  v.  Pollard,  73  Tex.  96,  15 
Am.  St.  Rep.  764,  11  S.  W.  Rep. 
165. 

34  See  Rowan  v.  Buttman,  1 
Daly,  412;  Curtis  v.  Williamson, 
L.  R.  10  Q.  B.  57,  s.  c.,  11  Moak's 
Kng.  149. 

"See  Hegeman  ».  Johnson,  35 
Barb.  200. 

36  Unless  he  be  a  public  agent. 

«  Mills  v.  Hunt,  20  Wend.  431. 

38  McCoomb  v.  Wright,  4  Johns. 
Ch.  659. 


"Plumb  v.  Milk,  19  Barb. 
74. 

40  See   Butler   v.   Evening   Mail 
Assoc.,  61  N.  Y.  634;  Coleman  v. 
First  Nat.  Bank,  53  Id.  388,  and 
cases  cited ;  and  see  Hall  v.  Lauder- 
dale,  46  N.  Y.  70. 

This  may  be  a  question  of  fact 
for  the  jury.  Allaun  v.  Glen  Brook 
Coal  Co.,  227  Fed.  Rep.  835,  142 
C.  C.  A.  359. 

41  Nason  v.  Cockroft,  3  Duer,  366, 
s.  P.,  Rossitor  v.  Rossitor,  8  Wend. 
494;  Palmer  v.  Stephens,  1  Den. 
471. 

42  Compare  Feeter  v.  Heath,  11 
Wend.  477,  and  Sinclair  v.  Jackson, 
8  Cow.  543. 

41  Compare,  on  this  question, 
Morrison  v.  Currie,  4  Duer,  79, 
and  Hall  v.  Lauderdale,  46  N.  Y. 
70. 


794 


THE    FACT   OF   SALE 


principal. 44  The  fact  that  he  was  a  factor  for  disclosed  foreign 
principals  does  not  raise  a  presumption  of  law  that  the  credit 
was  given  exclusively  to  himself; 45  but  the  question  whether 
he  is  personally  liable  is  one  of  intention,  to  be  gathered 
from  surrounding  circumstances,  usages,  etc.46  Parol  evi- 
dence is  admissible  of  a  trade  usage  by  which,  if  the  prin- 
cipal's name  is  not  disclosed  within  a  reasonable  time,  the 
agents,  though  they  acted  avowedly  as  agents,  are  personally 
liable;47  In  the  absence  of  such  evidence  the  agent,  acting 
openly  for  a  known  foreign  principal,  is  presumed  not  per- 
sonally liable.48 

14.  Assumption  of  Order  Originally  Given  by  a  Third  Per- 
son. 

Plaintiff  may  recover  on  proof  of  an  order  originally  given 


"See  Chappell  v.  Dann,  21 
Barb.  17.  When  the  principal 
is  undisclosed  at  the  time  of  the 
signing  of  a  contract,  a  third  party 
suing  thereon  may  show  that  there 
was  a  principal,  in  order  to  bind 
him,  but  the  agent  is  not  permit- 
ted to  prove  the  same  fact,  in  order 
to  free  himself  from  liability.  Hef- 
fron  v.  Pollard,  73  Tex.  96,  15  Am. 
St.  Rep.  764,  11  S.  W.  Rep.  165. 
11  S.  W.  Rep.  165. 

45  Kirkpatrick     v.     Stainer,     22 
Wend./ 244,  259.    But  see  contra, 
Story  on  Ag.,  §  268;  Armstrong  v. 
Stokes,  L.  R.  7  Q.  B.  578,  s.  c., 
3    Moak's   Eng.    217;   Hutton    v. 
Bullock,  L.   R.   8   Q.  B.  331,  9 
Id.  572,  s.  c.,  6  Moak's  Eng.  89, 
10  Id.  184.     See  also  Hochster  v. 
Baruch,  5  Daly,  440. 

46  Prof.  Dwight's  note  to  Allen  v. 
Schuchardt,  1  Am.  L.  Reg.  N.  S. 
17.    But  parol  evidence  can  never 
be   admitted   for   the  purpose   of 
exonerating  an  agent  who  has  en- 


tered into  a  written  contract  as 
principal,  even  though  he  should 
propose  to  show,  if  allowed,  that 
he  disclosed  his  agency  and  men- 
tioned the  name  of  his  principal  at 
the  time  the  contract  was  executed. 
Bulwinkle  v.  Cramer,  27  S.  C.  376, 
13  Am.  St.  Rep.  645,  3  S.  E.  Rep. 
776.  An  agent  who  executes  a 
promissory  note  in  his  own  name, 
with  nothing  on  the  face  of  the  in- 
strument to  disclose  his  agency, 
cannot  introduce  parol  evidence 
to  exonerate  himself  from  liability 
on  the  ground  that  the  note  was 
executed  in  behalf  of  his  principal, 
and  that  the  payee  was  aware  of 
the  relation  of  the  parties  and  of 
the  intent  with  which  the  instru- 
ment was  executed.  Shuey  v. 
Adair,  18  Wash.  188,  51  Pac. 
Rep.  388. 

47  Hutchinson  v.  Tatham,  L.  R. 
8  C.  P.  482,  s.  c.,  6  Moak's  Eng. 
230. 

48  Kirkpatrick  v.  Stainer  (above). 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  795 

by  a  third  person,  and  assumed  by  defendant; 49  but  not 
(without  amendment)  on  mere  evidence  that  the  defendant 
took  an  assignment  of  the  subject  of  the  order  from  the  one 
who  gave  it.50 

15.  Question  to  Whom  Credit  was  Given. 

To  prove  that  credit  was  given  to  one  or  another  of  several 
persons,  the  books  of  the  party  giving  the  credit  are  not 
competent  evidence  in  his  own  favor,  and  against  the  one 
sought  to  be  charged,51  unless  upon  some  ground  which 
would  make  them  competent  generally, — as,  for  instance, 
where  they  are  admissible  as  shop  books,  or  as  entries  made 
in  the  course  of  duty,  or  against  interest  by  a  person  since 
deceased,  or  as  entries  attested  by  the  testimony  of  the 
maker,  or  as  a  contemporaneous  memorandum  by  the  wit- 
ness which  he  has  used  to  refresh  memory,  or  as  part  of  the 
res  gestce,  or  as  having  been  communicated  to  the  party 
against  whom  they  are  adduced.52  The  books  of  the  party 
giving  the  credit  are  competent  against  him  to  show  that  he 
gave  credit  to  another  than  defendant — as,  for  instance, 
that  he  charged  the  goods  to  the  alleged  agent  through 
whom  they  were  bought,53  or  to  a  third  person  to  whom 
they  were  delivered54 — and  are  strong  evidence  that  he 
intended  to  give  credit  to  the  one  he  charged;55  but  in 

49  Sloan  v.  Van  Wyck,  36  Barb,  ties  are  admissible  as  bearing  upon 

335,  again,  47  Id.  634.  the    question    whether    defendant 

60  Barber  v.  Lyon,  22  Barb.  622.  purchased  the  goods  on  his  own 

51  Somers  v.  Wright,  114  Mass.  credit  or  merely  as  agent  for  an- 

171;  Field  v.  Thompson,  119  Id.  other.    Allaun  v.  Glen  Brook  Coal 

151.  Co.,  227  Fed.  Rep.  835,  142  C.  C. 

But  see  Gordon  Malting  Co.  v.  A.  359. 

Bartels  Brewing  Co.,  206  N.  Y.          "  See  Foster  ».  Persch,  68  N.  Y. 

528,  100  N.  E.  Rep.  457,  461.  400. 

52 See    Chapter   III,    paragraph         "Swift  v.  Pierce,  13  Allen,  136; 

66  of  this  vol. ;  and  later  paragraphs  Champion  v.  Doly,  31  Wis.  190. 
of  this  chapter;  Love  v.  Ramsey,         55  Ruggles    v.    Gatton,    50    111. 

139    Mich.  47,   102   N.  W.    Rep.  412;  Swift  v.  Pierce  (above).    The 

279.  question  is  one  for  the  jury.    Wolf 

Letters  passing  between  the  par-  v.  Solomon,  59  Pa.  Super.  255. 


796  THE    FACT   OF   SALE 

neither  case  are  they  conclusive,56  but  may  be  rebutted  by 
oral  or  other  evidence  explaining  the  charge.  It  is  not 
necessary  for  the  plaintiff  in  such  a  case,  in  order  to  rebut 
the  presumption  arising  from  the  charge,  to  show  that  it 
was  caused  by  mistake  or  fraud;  but  any  explanation  con- 
sistent with  the  intention  to  give  credit  only  to  another, 
may  be  shown.57 

If  it  be  uncertain,  on  the  evidence,  whether  the  sale  was 
on  the  credit  of  one  or  another,  the  plaintiff,  or  his  agent 
who  made  the  sale,  may  testify  directly  that  he  did  so  on 
the  credit  of  defendant,58  and  that  he  intended  to  give  credit 
to  him,  although  he  charged  another  on  his  books; 59  but 
evidence  of  the  declarations  of  the  plaintiff  made  to  the 
third  person,  or  otherwise,  in  the  absence  of  the  defendant, 
and  not  part  of  the  res  gestce,  is  not  competent  in  plaintiff's 
favor.60 

Evidence  that  one  of  such  persons  had  no  property  and 
was  entirely  irresponsible  is  inadmissible,  for  it  is  too  remote 
to  raise  a  presumption  that  the  sale  was  not  to  him.61  But 

56  Foster   v.    Persch,   68   N.   Y.  See  also  Munroe  v.  Mundy  & 

400,  and  cases  above  cited.  Scott,  164  Iowa,  707,  146  N.  W. 

67  Champion   v.   Doly,    31   Wis.  Rep.  819. 

190.    As,  for  instance,  that  it  was  60  Whitney   v.   Durkin,   48   Cal. 

so   made   at   defendant's   request  462,  s.  P.,  Moore  v.  Meacham,  10 

(James  v.  Spaulding,  4  Gray,  451),  N.  Y.  207. 

or  at  the  request  of  the  third  per-  61  Green  v.  Disbrow,  56  N.  Y. 

son  (Burkhalter  ?>.  Farmer,  5  Kans.  334,  rev'g  7  Lans.  381.      Contra, 

477),   or  for  temporary   purpose,  Miller  v.  Brown,  47  Mo.  504,  s.  c., 

plaintiff    not    being    informed    as  4  Am.  Rep.  345;  Moore  v.  Mea- 

to  the  standing  of  the  principal  cham,  above.     So  also  of  evidence 

(Maryland  Coal  Co.  v.  Edwards,  4  that  defendant,  a  father,  had  paid 

Hun,  432),  or  inadvertently,  the  the  son's  debts  to  other  tradesmen, 

charge  being  posted  from  the  order  Id. 

book.    Fiske  v.  Allen,  40  Super.  Ct.  But    where    the    question    was 

(J.  &  S.)  76.  whether  the  defendant  purchased 

58  Georgia   Cotton   Co.    v.   Lee,  for  himself  or  as  agent  for  his  wife, 

196  Ala.  599,  72  So.  Rep.  (Ala.)  evidence    that    the    husband    was 

158;  Lee  v.  Wheeler,  11  Gray,  236.  the    real    owner    of    the   business 

69  Folsomfl.  Sheffield,  53  Me.  171;  which  was  conducted  by  him  in 

Burkhalter  v.  Farmer,  5  Kan.  477.  the   name   of  his  wife,  has   been 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  797 

the  fact  that  the  insolvency  was  communicated  to  plaintiff, 
and  treated  by  him  as  a  reason  for  refusing  to  sell  to  the 
third  person,  is  competent.62 

16,  Identifying  the  Thing  Agreed  for. 

In  application  of  the  principles  before  stated  63  respecting 
oral  evidence,  it  is  to  be  observed  that  if  a  written  contract 
or  bill  of  sale  specifies  the  thing  sold,  oral  evidence  is  not 
competent  to  show  that  it  was  not  intended  to  pass  all  that 
was  specified,64  nor  to  show  that  the  writing  is  not  satisfied 
by  delivery  of  the  particular  lot  specified ; 65  but  it  is  com- 
petent (unless  inadequate  by  the  statute  of  frauds)  for  the 
purpose  of  showing  that  additional  articles  were  included 
hi  the  transaction,  though  not  specified  in  the  writing.66 

17.  Quality  and  Description. 

In  applying  the  same  principles  to  proof  of  the  quality 
or  description  of  the  goods,  it  is  well  settled  that  ex- 
trinsic evidence  is  competent  to  show  what  was  under- 
stood by  persons  engaged  hi  the  trade,  by  words67  or  ab- 

held  admissible,  although  the  tend-  600,  s.  p.,  Pierce  v.-  Woodward,  6 

ency  of  such  evidence  was  to  prove  Pick.    206.      Compare    Cram    v. 

that  the  carrying  on  of  his  busi-  Union  Bank,  1  Abb.  Ct.  App.  Dec. 

ness  in  the  name  of  his  wife  was  461,  affi'g  42  Barb.  426. 

for  the  purpose  of  defrauding  his  One  of  the  essential  elements  of  a 

creditors.     Botefuhr  v.  Rometsch,  contract  of  sale  is  the  identity  of 

34  Ore.  491,  56  Pac.  Rep.  808.  the  subject  matter,  and  if  this  be 

82Munroe  v.   Mundy   &   Scott,  not  established,  there  can  be  no 

164  Iowa,  707, 146  N.  W.  Rep.  819.  recovery    for    an    alleged    breach. 

See  Bronner  v.  Frauenthal,  37  N.  United  Roofing,  etc.,  Co.  v.  Albany 

Y.  166,  affi'g  9  Bosw.  350.    Com-  Mill  Supply  Co.,  18  Ga.  A.  184,  89 

pare   chapter   XII,   paragraph   5,  S.  E.  Rep.  177. 

and  chapter  XIII,  paragraph   19  67  Such  as  "  gas  fixtures,"  Downs 

of  this  vol.  v.  Sprague,  1  Abb.  Ct.  App.  Dec. 

83  Paragraphs  8  and  9.  550;   or  the   "product"   of  hogs, 

64  Ridgeway  v.  Bowman,  7  Gush.  Stewart  v.  Smith,  50  111.  397;  but 
268,  Benj.  on  S.,  §202.  probably  not    to    show  that    the 

65  Vail  v.  Rice,  5  N.  Y.  155.  word  "meal"  was  understood  by 
^Nedvidek   v.   Meyer,  46    Mo.      the     trade     to     signify    "corn." 


798 


THE   FACT   OF   SALE 


breviations  used;68  and  for  this  purpose  extrinsic  evidence 
is  competent  to  show  what  varieties  or  grades  are  included 
in  the  meaning  of  the  generic  term  used; 69  what  manufacture 
is  designated  by  a  particular  brand;70  that  an  article  des- 
ignated as  of  a  particular  material — such  as  mahogany  fur- 
niture or  horn  chains,71 — was  by  usage  of  trade  so-called, 
though  only  partly  of  the  material  indicated,  and  that  the 
parties  intended  such  article;  that  the  usage  of  measure- 
ment of  the  size  of  the  articles  was  peculiar,  as  that  in  selling 
trees  as  of  a  certain  height  it  was  customary  not  to  include 
the  green  top;72  or  that  the  qualifying  words  "with  all  faults" 
mean  all  that  are  not  inconsistent  with  the  identity  of  the 
goods; 73  and  the  like. 


Chandler  Grain  &  Milling  Co.  v. 
Shea,  213  Mass.  398,  100  N.  E. 
Rep.  663. 

It  has  been  held  that  where  the 
contract  is  silent  as  to  the  quality 
of  the  goods  ordered,  it  will  be 
presumed  that  the  parties  in- 
tended them  to  be  merchantable, 
or  such  as  are  suitable  for  the 
buyer's  business.  Puffer  Mfg. 
Co.  v.  Alabama  Marble  Quarries, 
73  So.  Rep.  (Ala.)  415. 

68  Dana  v.  Fiedler,  12  N.  Y.  40, 
affi'g  1  E.  D.  Smith,  463. 

69  As,  for  instance,  whether  "good 
merchantable  hay"  includes  clover, 
Fitch  v.  Carpenter,  40  Barb.  40; 
or  what  is  intended  by  "good  cus- 
tom    cowhide     boots."     Wait     v. 
Fairbanks,  Brayt.    (Vt.)   77,   139; 
or  whether  "winter  strained  lamp 
oil"  means  sperm  oil  only,  or  whale 
oil  as  well,  Hart  v.  Hammett,  18 
Vt.    127;   Benj.   on    S.,   §213,  n. 
In  order  to  prove  what  article  was 
intended  in  a  contract,  by  a  name 
used  in  commerce,  it  is  proper  to 
ask  a  witness,  who  is  an  expert, 


"how  the  article  is  generally  known 
in  the  market,  and  how  spoken  of 
generally."  Pollen  v.  Le  Roy,  10 
Bosw.  38,  affi'd  in  30  N.  Y.  649. 
Extrinsic  evidence  as  to  the  mean- 
ing of  the  word  "thermostat" 
in  a  contract  is  inadmissible,  that 
word  having  a  fixed  and  definite 
meaning.  Murphey  v.  Weil,  92 
Wis.  467,  66  N.  W.  Rep.  532. 

70  Pollen  v.  Le  Roy,  30  N.  Y.  549, 
affi'g  10  Bosw.  38.    But  not  of  a 
usage  to  accept  an  equal  or  better 
brand  in  lieu  of  that  agreed  for. 
Beals  ».  Terry,  2  Sandf.  127. 

71  Sweat  v.  Shumway,  102  Mass. 
365,  s.  c.,  3  Am.  Rep.  471. 

72  Barton  v.  McKelway,  22  N.  J. 
165.    See  also  City  &  Suburban  Ry. 
Co.  v.  Basshor,  82  Md.  397,  33 
Atl.  Rep.  635. 

73  Whitney    v.    Boardman,    118 
Mass.  242;  Benj.  on  S.,§  213.    The 
meaning  of  characters,  marks,  let- 
ters, figures,  words  or  phrases  used 
in  contracts,  having  purely  a  local 
or  technical  meaning,  unintelligible 
to  persons  unacquainted  with  the 


ACTIONS   FOR    PRICE    OF   GOODS,    ETC.  799 

The  fact  that  the  articles  delivered  were  such  as  to  satisfy 
the  contract  may  be  proved  by  testimony  to  their  quality, 
or  by  opinions  of  qualified  witnesses  that  they  corresponded 
with  that  which  the  contract  calls  for.  If  they  are  shown 
not  to  have  corresponded,  and  to  have  been  rejected  on  that 
account,  evidence  of  a  usage  to  make  alterations  afterward 
is  not  competent.74 

18.  Quantity. 

In  application  of  the  principles  already  stated,75  as  to  oral 
evidence  explanatory  of  sales,  it  is  held  that  parol  evidence 
is  admissible  to  show  that  by  the  word  "barrels,"  used  hi  a 
written  contract,  was  intended  vessels  of  a  certain  kind  and 
capacity,  and  not  a  measure  of  quantity,  and  that  the  parties 
contracting  had  reference  not  to  a  statute  barrel,  but  to 
certain  vessels  of  uniform  size  of  different  capacity  from  the 
statute  barrel.76  So  extrinsic  evidence  of  defendant's  usage 
to  sell  2,240  Ibs.  to  the  ton,  instead  of  the  statute  number  of 
2,000  Ibs.,  and  that  the  contract  was  made  in  reference  to 
his  usage,  is  competent.77  So  under  a  contract  for  shingles 

business,  may  be  given  and  ex-  75  Paragraphs  8  and  9. 

plained  by  parol  evidence,  if  the  76  Miller  v.  Stevens,  100  Mass, 

explanation  be  consistent  with  the  518,  s.  c.,  1  Am.  Rep.  139,  and 

terms  of  the  contract.     Atkinson  cases  cited;  Benj.  on  S.,  §213,  n. 

v.  Truesdell,   127   X.   Y.   230,  27  Evidence  of  a  usage  in  the  trade, 

N.  E.  Rep.  844.    The  court  takes  in  sales  by  quantity,  to  estimate 

judicial    notice    of    the    ordinary  by  measure  of  one  barrel  in  every 

meaning  of  all  words  in  our  tongue;  ten,  taken  promiscuously,,  is  com- 

and  dictionaries  are  admitted,  not  petent  in  an  action  between  mem- 

as  evidence,  but  only  as  aids  to  the  bers    of    the    trade.      Dalton    v. 

memory  and  understanding  of  the  Daniels,  2  Hilt.  472. 

court.    Nix  v.  Hedden,  149  U.  S.  n  Many  v.  Beekman  Iron  Co.,  9 

304.  Paige,    188.      Compare    Hall    v. 

"Brown  z>.  Foster,  113  Mass.  136;  Reed,  1  Barb.  Ch.  500. 

Benj.  on  S.,  §215.  Where   an  order  was   for  fifty 

The  burden  of  showing  that  the  pieces    of    cloth    goods    without 

articles    delivered    complied    with  specifying  the  number  of  yards  per 

the  contract  is  upon  the  plaintiff,  piece,    parol    evidence    was    held 

Skogness  v.  Seger,  35  X.  D.  366,  admissible  to  show  the  understand- 

160  X.  W.  Rep.  508.  ing  of  the  parties  as  to  the  length 


800 


THE   FACT   OF   SALE 


by  the  "  thousand,"  it  may  be  shown  that,  by  usage  of  the 
trade,  two  bundles  of  a  certain  size  are  sold  as  a  thousand 
without  regard  to  actual  count.78  So  where  the  contract  is 


for  a 


cargo," 79  or  a  person's 


crop," i30  or  for  a  " season, 


"  81 


those  words  may  be  explained  by  parol.  But  if  the  writing, 
properly  understood,  calls  for  a  certain  quantity,  evidence 
of  a  reservation  of  a  part  by  parol,  is  inadmissible.82 

If  the  contract  is  for  a  specific  parcel  or  lot  described  as 
being  of  a  certain  quantity,  "more  or  less,"  evidence  of  a 
usage  that  "more  or  less  "  is  limited  to  a  certain  percentage, 
is  not  admissible; 83  nor  is  evidence  that  the  parties'  under- 
standing was  that  the  buyer  was  to  have  more  or  less  as 
might  be  found  necessary  to  make  up  a  cargo,  although  it 
appeared  that  both  parties  knew  that  the  goods  were  brought 


of  each  piece.  Galland  v.  Kass, 
152  N.  Y.  Supp.  1074. 

78  Soutier  v.  Kellerman,  18  Mo. 
(3  Bennett),  509,  s.  P.,  1  Greenl. 
Ev.,  §281. 

n  Clark  v.  Baker,  11  Mete.  186; 
Hay  v.  Leigh,  48  Barb.  383; 
Rhoades  v.  Castner,  12  Allen,  130; 
Benj.onS.,  §215. 

"A  record  of  the  shipment  by 
the  plaintiff  to  the  defendant  of  a 
large  number  of  car  loads  of  coal, 
which  record  showed  the  weights  of 
each  car,  was  offered  in  evidence 
by  the  defendant  for  the  purpose  of 
establishing,  among  other  things, 
the  average  weight  of  a  car  load  of 
coal,  and  the  amount  of  the  de- 
fendant's damages  incident  to  the 
non-delivery  of  a  certain  amount 
of  coal  that  should  have  been  de- 
livered. The  plaintiff  objected  to 
the  record,  but  we  perceive  no 
merit  in  the  objection,  inasmuch  as 
the  plaintiff's  counsel  admitted 
that  the  weight  of  the  car  loads  of 
coal  was  correctly  stated  in  the 


record.  This  being  so,  it  was 
properly  allowed  to  be  read  in  evi- 
dence for  the  purpose  of  showing 
what  amount  of  coal,  upon  the 
average  a  car  would  carry,  and 
what,  in  the  estimation  of  the  par- 
ties, constituted  a  car  load."  Con- 
solidated Coal  Co.  v.  Polar  Wave 
Ice  Co.,  106  Fed.  Rep.  798,  45 
C.  C.  A.  638.  See  also  Knapp  v. 
Hubbard,  176  Mich.  264, 142  N.  W. 
Rep.  571;  Alger  v.  Morrill,  68  Vt. 
598,  35  Atl.  Rep.  483. 

80  Goodrich  v.  Stevens,  5  Lans. 
230.    Compare  McDonald  v.  Long- 
bottom,  1  E.  &  E.  297,  987,  s.  c., 
28  L.  J.  Q.  B.  293,  29  Id.  256. 

81  Myers  v.  Walker,  24  111.  133. 

82  Austin  v.  Sawyer,  9  Cow.  39. 
See  Colorado  T.  &  T.  Co.  v.  Oliver, 
20  Colo.  A.  257,  78  Pac.  Rep.  308. 

83  Vail  v.  Rice,  5  N.  Y.  155.   Com- 
pare Sewall  v.  Gibbs,  1  Hall,  602; 
Bacon   v.    Gilman,   4   Lans.   456, 
s.  c.,  60  Barb.  640.     See  Mosby 
».  Smith,  194  Mo.  A.  20,  186  S.  W. 
Rep.  49. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  801 

for  that  purpose,  and  that  the  amount  to  be  required  was 
uncertain.833  If  the  contract  calls  for  a  specified  quantity 
merely,  "more  or  less,"  according  to  the  discretion  of  a 
designated  agent,  the  fair  discretion  of  the  agent  is  conclu- 
sive.8313 A  bill-head  notice  restricting  claims  for  deficiencies 
is  not  relevant,  if  the  contract  was  complete  and  binding 
before  the  delivery  of  the  bill.830 

A  variance  between  pleading  and  proof,  as  to  the  quantity, 
if  it  does  not  mislead,  may  be  disregarded.83<1 

19.  Price  Agreed. 

Abbreviations 83<J  and  ambiguous  expressions 83f  as  to 
price,  in  a  written  contract,  may  be  explained  by  parol. 
So  where  the  agreement  is  for  a  certain  advance  on  "cost," 
extrinsic  evidence  is  competent  to  show  the  intent  of  the 
parties  in  the  use  of  such  a  term.83*  A  contract  which  was 
void  by  the  statute  of  frauds,  is  good  as  a  proposition  of 
price,  and  governs,  if  the  goods  were  subsequently  delivered 
and  accepted  pursuant  to  it.83h  Where  the  testimony  is  con- 
flicting as  to  what  was  the  price  agreed  upon 84  in  an  oral 

83a  Cabot  v.  Winsor,  1  Allen  lard,  19  N.  Y.  299,  rev'g  23  Barb. 

(Mass.),  546,  1  Pars.  548.  82. 

83b  Brawley  v.  United  States,  96  84  Moore  v.  Davis,  49  N.  H.  45, 

U.  S.  (6  Otto)  168.  s.  c.,  6  Am.  Rep.  460;  Valley 

83C  Allen  v.  Schuchardt,  1  Am.  Lumber  Co.  v.  Smith,  71  Wise.  304, 

L.  Reg.  N.  S.  13,  affi'd  in  1  Wall.  5  Am.  St.  Rep.  216,  37  N.  W.  Rep. 

359.  412.  Otherwise  where  there  is  no 

83(1  Pottery.  Hopkins,  25  Wend.  conflict  in  the  evidence.  Van 

417.  Orden  v.  Fox,  32  App.  Div.  (N.  Y.) 

836  Taylor  v.  Beavers,  4  E.  D.  173,  175.  Copeland  v.  Brockton 

Smith,  215;  Dana  v.  Fiedler,  12  Street  Railway,  177  Mass.  186,  58 

N.  Y.  40,  Benj.  on  S.,  §  213,  n.  N.  E.  Rep.  639,  83  Am.  St.  Rep. 

83f  Cole  v.  Wendel,  8  Johns.  116.  274. 

83g  Gray  v.  Harper,  1  Story,  574,  In  an  action  to  recover  the  bal- 

STORY,  J.;  Benj.,  §  213,  n.;  Herst  ance  due  on  a  sale  of  stock,  where 

v.  De  Comeau,  1  Sweeny,  590;  and  there  was  a  dispute  as  to  the  agreed 

see  Buck  v.  Burk,  18  N.  Y.  337.  price,  it  was  held  that  proof  of  the 

83h  Sprague  v.  Blake,  20  Wend.  value  of  the  assets  of  the  corpora- 

61.  But  compare  Erben  v.  Loril-  tion,  and  of  plaintiff's  pecuniary 


802  THE    FACT   OF   SALE 

sale,  or  as  whether  there  was  any  agreement  as  to  price,85  it 
is  competent  to  show  the  value  of  the  property  at  the  time  of 
sale  as  tending  to  show  what  the  real  contract  was.  Under 
an  allegation  of  a  sale  of  goods  worth  a  specified  sum,  plain- 
tiff may  prove  that  sum  to  have  been  agreed  on  as  the  price. 
At  common  law  it  was  the  better  opinion  that,  under  an 
allegation  of  goods  sold  for  money,  plaintiff  might  prove  a 
sale  for  anything  agreed  to  be  treated  as  cash,  or  a  sale  to  be 
paid  for  hi  services  or  goods,  the  burden  being  on  plaintiff, 
however,  to  show  that  the  buyer  was  in  default  in  the  special 
agreement.86  Under  the  new  procedure  such  a  variance  is 
to  be  disregarded,  unless  it  has  misled  defendant  to  his  prej- 
udice. If  the  consideration  was  an  evidence  of  debt  or  a 
conveyance,  the  contents  of  it  may  be  stated  for  the 
purpose  of  proving  that  fact,  without  producing  the 
instrument.87 

The  fact  that  defendant  admitted  being  indebted,  when 
payment  was  demanded,  is  not  sufficient  evidence  of  the 
amount  of  price,  unless  there  is  in  the  admission,  or  connected 
with  it,  something  to  indicate  the  amount,  or  data  from 

condition  at  the  time  of  the  trans-  Mich.     366,     76     N.     W.     Rep. 

fer  was  admissible,  as  showing  the  912. 

probability  of  the  price  agreed  to  On  the  question  whether  an  auc- 

be  paid  for  the  stock,  and  the  likeli-  tion  sale  at  a  certain  figure  was  for 

hood  that  the  plaintiff  negotiated  cents  or  dollars,  bystanders  who 

a  sale  of  the  stock  for  a  sum  less  were  present  as  bidders  may  testify 

than    he    claimed.      Mclntosh    v.  to  their  understanding  of  the  bids. 

McNair,  63  Ore.  57,  126  Pac.  Rep.  Ives   v.  Tregent,  14   Bankr.   Reg. 

9.  60. 

85  M.  D.  Wells  Co.  v.  Rayworth,  »  COWEN,  J.,  Clark  v.  Fairchild, 

153  Wis.  453,  141  N.  W.  Rep.  286;  22  Wend.  583. 

Brown  v.  Cahalin,  3  Ore.  45.    But  Under  the  Sales  Act  (Pers.  Prop, 

where    plaintiff    in    his    pleadings  L.  N.  Y.  Cons.   Laws,  §  90)   the 

and  in  his  proofs  bases  his  claim  price  may  be  made  payable  in  any 

upon  an  alleged  sale  at  an  agreed  personal   property.     Contracts  of 

price,  he  cannot  introduce  evidence  barter    and    exchange    are    thus 

of  the  reasonableness  of  the  price  brought  within  the  scope  of  the 

agreed   upon   unless   the   adverse  statute. 

party    has    attacked    it    as    un~  w  Reynolds    v.    Kelly,    1    Daly, 

reasonable.    Post  r.  Voorhees,  118  283. 


ACTIONS   FOR    PRICE    OF   GOODS,    ETC. 


803 


which  it  may  be  computed.88  So,  although  delivery  of  a  bill 
of  the  goods,  and  the  making  of  a  payment  on  account 
without  objection,  gives  it  the  legal  effect  of  an  account 
stated;  it  is  otherwise  if  there  be  evidence,  that  when  the 
defendant  made  the  payment  he  objected  to  the  bill.89 


20.  Value. 

Under  an  allegation  of  an  agreed  price,  if  there  is  a  failure 
to  prove  the  agreement  as  to  price,  evidence  of  value  is 
competent  for  the  purpose  of  a  recovery  of  what  the  article 
was  fairly  worth,90  but  not  to  sustain  a  recovery  beyond  the 
amount  alleged.91  And  even  hi  those  jurisdictions  where 
this  is  regarded  as  a  variance,  evidence  of  value  is  relevant 
on  the  question  of  agreement,  if  the  evidence  of  agreement 


"Douglas  v.  Davie,  2  McCord 
(So.  C.),  218;  Hanson  v.  McKen- 
ney,  2  Bay,  412. 

Thus  where  the  price  was  to  be 
computed  according  to  the  amount 
delivered,  it  is  incumbent  on  the 
vendor  to  prove  the  amount  of  the 
deliveries.  French  v.  Whelden,  99 
Atl.  Rep.  (Vt.)  232;  Mach  Mfg. 
Co.  v.  Donovan,  86  N.  J.  L.  327, 
91  Atl.  Rep.  310.  (Payment  on 
account  without  objection  and 
promise  to  pay  balance  of 
bill.) 

89  Jacques  v .  Elmore,  7  Hun,  675. 
See    Varley    v.     Nichols-Shepard 
Sales  Co.,  191  S.  W.  Rep.  (Tex. 
Civ.  App.)  611. 

90  Sussdorf  v.  Schmidt,  55  N.  Y. 
319. 

Where  the  purchaser  of  a  silo 
claimed  that  it  was  worthless, 
evidence  as  to  what  it  would 
cost  to  repair  the  same,  was  held 
admissible.  Ames  Portable  Silo 
&  Lumber  Co.  v.  Gill,  I  190 


S.  W.  Rep.  (Tex.  Civ.  App.) 
1130. 

Where  plaintiff's  claim,  both  in 
his  pleadings  and  in  his  proofs,  is 
based  upon  an  alleged  sale  at  an 
agreed,  price,  the  only  theory  upon 
which  he  can  recover  is  a  sale  upon 
an  agreed  price.  In  such  a  case, 
it  is  error  for  the  trial  court  to 
instruct  the  jury  that,  should  they 
find  that  the  price  had  not  been 
agreed  upon,  they  might  fix  the 
value  and  render  judgment  ac- 
cordingly. Post  v.  Voorhees,  118 
Mich.  366,  76  N.  W.  Rep. 
912. 

There  can  be  no  sale  without  a 
price.  Therefore  a  complaint  for 
goods  sold  and  delivered  must  al- 
lege an  agreed  price  or  the  value 
of  the  goods,  and  if  it  does  not  al- 
lege either  it  is  demurrable.  Sparks 
v.  Ducas,  123  N.  Y.  App.  Div.  507, 
108  N.  Y.  Supp.  546. 

91  See  Trimble  v.  Stilwell,  4  E.  D. 
Smith,  512. 


804 


THE   FACT   OF   SALE 


is  conflicting.918  And  under  a  complaint  seeking  to  recover 
what  the  thing  was  justly  worth,  evidence  of  an  agreed  price 
is  admissible ; 92  and  the  agreement  for  price  controls,93  if 
within  the  limit  marked  by  the  allegation  of  value  and  de- 
mand of  judgment.  If  the  contract  or  order  proved  was 
silent  as  to  the  price,94  or  if  there  was  no  assent  as  to 
price,95  the  law  implies  a  promise  to  pay  at  the  current 
market  rates,  or  the  fair  value.  Where  the  party's  shop 
books  are  competent  in  his  own  favor,96  the  price,  if  stated 
in  the  entry  is  prima  facie  evidence  in  his  favor,  of  the 
value  also.97 

The  value  of  merchandise  which  has  no  regular  market 
value,  and  the  price  of  which  must  depend  on  circumstances 


»1&  In  Copeland  v.  Brockton 
Street  R.  Co.,  177  Mass.  186,  58 
N.  E.  Rep.  639,  83  Am.  St.  Rep. 
274,  "the  only  question  in  dis- 
pute between  the  parties  was 
as  to  the  price  to  be  paid  for 
five  hundred  and  thirty  loads  of 
sand,  sold  by  the  plaintiff  to  the 
defendant.  The  plaintiff  contended 
that  the  price  agreed  to  be  paid 
was  fifteen  cents  a  load,  and  the 
defendant  that  it  was  ten  cents  a 
load.  There  was  evidence  that 
such  sand  had  a  market  value, 
and  that  both  parties  knew  it. 
As  bearing  upon  the  probabili- 
ties of  what  the  contract  was  as 
to  price,  the  judge  allowed  the 
plaintiff  to  show  what  the  fair 
market  price  was  there  at  that 
time;  and  the  defendant  excepted. 
The  jury  were  instructed  that  they 
should  consider  the  evidence  only 
as  bearing  on  the  question  of  prob- 
ability, if  it  furnished  any,  of  what 
the  contract  as  to  price  was;  and 
also  that  the  plaintiff  could  not 
recover  the  fair  market  value  but 


only  ten  or  fifteen  cents  a  load." 
The  court  held  that  the  evidence 
was  rightly  admitted  for  the  pur- 
pose to  which  it  was  limited. 

92  Fells  v.  Vestvali,  2  Keyes,  152; 
Coleman  v.  Forrester,  178  Mo.  App. 
57,  163  S.  W.  Rep.  263. 

93  See  Ludlow  v.  Dole,  62  N.  Y. 
617,  affi'g  1  Hun,  71,  4  Supm.  Ct. 
(T.  &  C.)  655.    See  City  &  Subur- 
ban Ry.  Co.  v.  Basshor,  82  Md. 
397,  33  Atl.  Rep.  635. 

94  Konitzky  v.  Meyer,  49  N.  Y. 
571. 

Where  the  contract  is  silent  as 
to  the  price,  and  no  evidence  of  the 
value  of  the  goods  is  offered,  there 
can  be  no  recovery.  Smith  r. 
Hendelan,  161  N.  W.  Rep. 
(Minn.)  221.  See  Pers.  Prop.  L. 
(X.  Y.  Cons.  Laws),  §90,  subd. 
4. 

93  Booth  v.  Bierce,  38  N.  Y.  463, 
rev'g  40  Barb.  114. 

96  See  paragraph  39. 

97  The   Potomac,  2  Black,   581, 
1  Greenl.  Ev.,  §  118,  p.  150,  n. 


ACTIONS   FOR    PRICE    OF   GOODS,    ETC. 


805 


peculiar  to  the  single  transaction,  and  the  purchasers,98 
is  to  be  ascertained  by  the  probabilities  of  the  case,  founded 
on  proof  of  facts  which  in  the  ordinary  transaction  of  busi- 
ness would  affect  the  mind  of  a  dealer  hi  similar  articles  in 
determining  a  price  to  be  asked  or  given."  In  doubtful  cases 
and  in  the  absence  of  better  evidence,  the  actual  cost  of  the 
thing  to  the  seller  is  relevant  to  the  question  of  its  value,  at 
least  as  evidence  against  him  as  in  the  nature  of  an  admission 
of  value,  especially  if  the  thing  have  no  regular  market 
value.1  So  the  price  named,  by  an  agent  for  selling,  when 
offering  goods,  is  competent  evidence  of  value  as  against 
his  principal.2  But  as  against  evidence  of  an  agreed  price, 
a  mere  admission  of  less  value  cannot  avail.3 

Comparison  of  values  between  the  thing  in  question  and 
others  of  different  quality  which  are  not  involved  hi  the 
litigation  is  not  allowable  for  the  purpose  of  calculating  the 


98  As  in  the  case  of  military  ac- 
coutrements usually  bought  only 
by  government.  As  to  "fancy 
prices,"  in  case  of  animal  pets  and 
the  like,  see  3  Abb.  X.  Y.  Dig., 
new  ed.  81;  Bennett  v.  Drew,  3 
Bosw.  355.  In  an  action  to  re- 
cover the  value  of  a  trotting  horse, 
evidence  of  his  pedigree,  and  that 
some  of  his  blood  relations  have 
a  record  for  speed,  is  competent 
as  affecting  his  value.  Pittsburgh, 
&c.,  Ry.  Co.  v.  Sheppard,  56 
Ohio  St.  68,  46  X.  W.  Rep. 
61. 

"Sturm  v.  Williams,  38  Super. 
Ct.  (J.  &  S.)  323, 343.  So  held  on  a 
question  of  overvaluation  in  in- 
suring. 

Evidence  that  a  jack,  the  sub- 
ject of  the  sale,  had  been  sold  for 
over  §100  to  satisfy  the  lien  of  a 
livery  stable  keeper,  is  admissible 
to  show  the  jack's  value.  Monroe 


v.  Arthaud,  186  S.  W.  Rep.  (Mo.  A.) 
554. 

1  The  cost  of  property  is  some 
evidence  of  its  value.    Hangen  v. 
Hachemeister,    114    N.    Y.    566; 
Smith  v.  Griffith,  3  Hill,  333;  Haw- 
ver  v.  Bell,  141  N.  Y.  140;  Bini  v. 
Smith,  36  App.  Div.  (X.  Y.)  463, 
466;  Welling  v.  Ivoroyd  Mfg.  Co., 
15  App.  Div.  (X.  Y.)  116, 118.   But 
compare  Louisville  Jeans  Clothing 
Co.    v.    Lischkoff,    109   Ala.    136, 
19  So.  Rep.  436.     As  to  proving 
value  of  corporate  stock,  see  Moffit 
v.  Hereford,  132  Mo.  513,  518,  34 
S.  W.  Rep.  252. 

2  Ciiquot's  Champagne,  3  Wall. 
140,  148;  Banks  v.  Gidrot,  19  Geo. 
421. 

3  Davis  v.  Shields,  24  Wend.  322, 
rev'd  on  another  point  in  26  Id. 
341;  Havemeyer  v.   Cunningham, 
35  Barb.  515,  s.  c.,  22  How.  Pr. 
87. 


806  THE    FACT   OF   SALE 

value  of  the  one  in  question.4  A  witness  cannot  testify  that 
a  different  article  was  worth  a  specified  sum,  and  that  the 
one  in  question  was  superior  or  inferior.  And  upon  the  same 
principle  it  is  not  allowable  to  arrive  at  the  value  by  testi- 
mony that  the  thing  in  question,  with  certain  alterations  or 
differences,  would  be  worth  a  specified  sum,  thereupon 
making  allowance  for  the  difference;  nor  that  it  was  worth 
a  different  sum  at  another  date,  thereupon  making  allow- 
ance for  the  lapse  of  time.5 

The  three  chief  elements  in  the  proof  of  value  are,  the  in- 
trinsic qualities  of  the  particular  thing  sold;  its  usual  price, 
or,  if  there  be  none,  a  valuation  of  it ;  and  the  qualifications 
of  the  witness  called  to  testify  to  either  of  these  points.  The 
intrinsic  qualities,  and  the  usual  price  or  proper  valuation  of 
a  thing  of  such  qualities,  may  be  proved  by  the  same  or  by 
different  witnesses. 

Where  an  article  has  no  market  value,  its  value  may  be 
shown  by  proof  of  such  elements  or  facts  affecting  the  ques- 
tion as  may  exist.  Recourse  may  be  had  to  the  items  of  cost 
and  its  utility  and  use,  and  the  opinion  of  witnesses  properly 
informed  on  the  subject  may  be  given  in  respect  to  its  value.6 

4  See  Gouge  v.  Roberts,  53  N.  Y.  it  was  held  error  for  the  court  to 

619,  s.  P.,  Blanchard  0.  N.  J.  Steam-  allow  the  plaintiff  to  testify,  on  the 

boat  Co.,  59  N.  Y.  300,  affi'g  3  question  of  value,  as  to  the  differ- 

Supm.  Ct.   (T.  &  C.)  771 ;  Color  ence  in  value  between  the  machine 

Printing  Attacht.   Co.   v.   Brown,  contracted   for   and   the   one   de- 

37  Super.  Ct.  (J.  &  S.)  433.  livered.    Isbell-Porter  Co.  v.  Heine- 

But  where  the  article  contracted  man,  126  N.  Y.  App.  Div.  713,  111 

for  cannot  be  obtained  and  has  N.  Y.  Supp.  332. 

no  market  value,  in  an  action  for  6  This  is  one  of  the  cases  where, 

damages  for  non-delivery,  evidence  in  the  present  state  of  our  law,  the 

of  the  value  of  the  next  best  sub-  processes  by  which  witnesses  ar- 

stitute    obtainable    is    admissible,  rive  at  their  opinions  are  not  al- 

Tri-Bullion    Smelting,    etc.,    Co.  lowed  to  be  given  to  the  jury,  on 

v.  Jacobsen,  233   Fed.   Rep.  646,  direct  examination.     The  case  of 

147  C.  C.  A.  454.  comparison  of  handwriting  is  an- 

Where  plaintiff  alleged  that  the  other.    How  far  it  is  allowable  on 
defendant  accepted  a  certain  ma-  cross-examination  is  not  well  set- 
chine  different  from  the  one  con-  tied, 
tracted  for  and  demanded  its  value,  6  Sullivan  ».  Lear,  23  Fla.  463,  11 


ACTIONS   FOR   PRICE   OF   GOODS,    ETC.  807 

21.  Market  Value. 

The  question  of  market  value  is  more  frequently  con- 
tested in  cases  of  actions  for  breach  of  executory  contracts 
or  of  warranties,  but  the  rules  for  proving  it  may  be  most 
conveniently  stated  here,  in  connection  with  the  general 
question  of  proof  of  value. 

To  constitute  a  market  value,  it  must  appear  that  similar 
articles  have  been  bought  and  sold  hi  the  way  of  trade,  hi 
sufficient  quantity  or  frequency.7  If  the  contract  or  conduct 
of  the  parties  fixed  a  day,  so  that  the  right  of  recovery, 
strictly  considered,  turns  on  the  then  market  value,  the 
evidence  should  be  directed  to  the  market  value  on  that 
precise  day,8  and  not  extend  to  the  ordinary  market  value  at 
other  tunes.9  But  if  there  were  no  sales  then,10  or  if  the  sales 
had  are  shown  to  have  been  at  fictitious  prices,  or  at  prices 
unnaturally  inflated  or  depressed  by  artificial  combination 
for  the  purpose  of  fixing  a  false  price,11  evidence  of  prices 
before  and  after  the  day  within  a  reasonable  limit  resting 
in  judicial  discretion,12  is  competent  for  the  purpose  of  in- 

Am.  St.    Rep.    388,    2    So.   Rep.  buyers  and  sellers  dealing  in  the 

846.  article."    Carey  Lithographic  Co.  v. 

Absence  of  market  value  at  the  Magazine  &  Book  Co.,  70  Misc.  541, 

time  of  breach  will  not  be  per-  127  N.  Y.  Supp.  300. 

mitted    to   deprive    an   aggrieved  8  Dana  v.  Fiedler,  12  N.  Y.  40, 

vendee  of  his  right  to  damages,  affi'g  1  E.  D.  Smith,  463. 

B.  P.  Ducas  Co.  v.  Bayer  Co.,  163  9  Cahen  v.  Platt,  69  N.  Y.  348, 

N.Y.Supp.  32.  352;  Belden  v.  Nicolay,  4  E.  D. 

7  Harris  v.  Panama  R.  R.  Co.,  Smith,   14;  Houghton  Implement 

58  N.  Y.  660.    So  held  in  an  action  Co.  v.  Doughty,  14  N.  D.  331,  104 

against  a  carrier.  N.  W.  Rep.  516. 

"'The   market    price    is  ...  a  10Dana  v.  Fiedler,  and  Cahen  v. 
price  fixed  by  buyer  and  seller  in  Platt  (above), 
an  open  market,  in  the  usual  and  ll  Kountz     v.     Kirkpatrick,     72 
ordinary    course    of    lawful   trade  Penn.  St.  376,  s.  c.,  13  Am.  Rep. 
and     competition.'       Lovejoy     v.  687.     But  the  probable  effect  on 
Michels,  88  Mich.  15,  23.    Where  prices,  of- throwing  on  the  market 
the  subject  of  the  price  is  an  article  so  large  a  quantity  as  that  con- 
commonly  dealt  in,  this  price  will  tracted  for,  is  not  relevant.    Dana 
be  fixed  in  a  more  or  less  definite  v.  Fiedler  (above), 
sum  by  the  concensus  of  all  the  '-  Dana  v.  Fiedler  (above).     It 


808  THE    FACT   OF   SALE 

f erring  the  value  on  the  precise  day;  and  it  is  no  objection 
to  the  application  of  this  principle  that  it  admits  evidence 
of  sales  hi  the  market  made  after  suit  brought.13  The  proper 
limit  of  tune  is  to  be  determined  by  the  principle  of  requiring 
the  best  evidence  the  circumstances  permit.  In  case  of  com- 
mercial merchandise  having  constant  market,  the  limit  is 
shorter  than  in  the  case  of  less  salable  goods.14  This  ex- 
cluding rule  is  not  so  strictly  applied  in  actions  for  price  of 
goods  sold  and  delivered  at  successive  dates,  where  it  does 
not  appear  that  the  market  price  varied  during  the  general 
period  of  the  witness'  conversance  with  it.15  If  the  contract 
or  the  conduct  of  the  parties  fixed  a  place,16  by  the  market 
rates  of  which  the  value  is  to  be  ascertained,  the  evidence 
should  be  confined  to  the  market  value  at  that  place,  and 
not  extend  to  the  value  in  other  markets.17  But  if  there  were 
no  sales  there,  evidence  of  the  price  at  places  not  distant,  or 
in  other  controlling  markets  may  be  given,  not  for  the  pur- 
pose of  establishing  the  market  price  of  such  other  place, 
but  for  the  purpose  of  showing  indirectly,  in  the  absence  of 
direct  evidence,  the  market  price  at  the  place  of  de- 
is  competent  to  prove  the  value  of  not  be  admitted.  Dana  v.  Fiedler 
property  at  a  certain  time,  by  (above).  On  the  other  hand,  in  the 
showing  its  value  at  a  prior  and  case  of  secondhand  household 
subsequent  period,  within  reason-  goods,  the  price  they  brought  at 
able  limits,  in  the  same  market,  auction  within  three  months  is 
Torrey  v.  Burney,  113  Ala.  496,  relevant.  Crounse  v.  Fitch,  1  Abb. 
21  So.  Rep.  348.  Ct.  App.  Dec.  475.  But  if  any- 

13  But  the  motives  and  interest      thing  occurred  in  the  interim  ma- 
of  the  parties,  and  other  circum-      terially   affecting  the  value,  it  is 
stances  of  the  sale,  may  of  course      competent  for  the  adverse  party 
be   inquired   into   and   considered      to  show  it.    Id. 

by   the  jury   in   determining   the          16  Kerr  r.   McGuire,   28  N.   Y. 

weight  to  be  given  to  such  evi-  446,  s.  c.,  28  How.  Pr.  27. 
dence.     Kingsbury   v.   Moses,  45          16  See  Cahen  v.  Platt,  69  N.  Y. 

N.  H.  222.  348. 

14  Thus  where  sales  of  such  mer-          "  Id.,  and  cases  cited;  Comer  v. 
chandise  within  two  or  three  weeks  Way,  107  Ala.  300, 19  So.  Rep.  966. 
of  the  precise  day  are  shown  to  have  Except  when  proper  as  corrobora- 
been  had,  the  market  price  running  tive.    Gordon  v.  Bowers,  16  Penn. 
through  two  or  three  months  should  St.  226. 


ACTIONS    FOR    PRICE    OF    GOODS,    ETC. 


809 


livery;  18  and  hence,  in  connection  with  market  value  at  other 
places,  evidence  of  the  expense  of  transportation  between  such 
places  is  relevant. 19  Upon  the  same  principle,  if  the  plaintiff's 
proof  of  market  value  at  the  precise  place  is  uncertain,  evi- 
dence of  the  market  value  hi  an  adjoining  town  easily  and 
speedily  reached,  is  competent.20 

The  market  value  at  a  given  time  and  place  may  be  proved 
by  evidence  of  actual  sales  then  and  there  of  merchandise 
of  the  same  quality; 21  and  it  is  not  necessary  to  prove  any 


18  Id.,  and  cases  cited;  Harris  v. 
Panama  R.  R.  Co.,  58  N.  Y.  660. 
Where  the  value  of  personal  prop- 
erty cannot  be  fixed  by  the  proof 
of  local  markets,  it  may  be  done 
by  proof  of  value  at  the  nearest 
point    where   similar    property   is 
bought  and  sold,  with  proper  ad- 
dition  or   deduction   for   cost   of 
transportation  and  the  hazard  and 
expense  incident   thereto,  accord- 
ingly as  the  property  is  held  for  sale 
or  for  use.     But  evidence  of  the 
value  of  such  property  in  a  distant 
market   is   not   admissible   unless 
it  is  proved  that  there  is  no  ade- 
quate local  market,  or  that  the  two 
markets    are    interdependent   and 
sympathetic.     Jones  v.  St.  Louis, 
&c.  Ry.  Co.,  53  Ark.  27,  22  Am. 
St.  Rep.  175,  13  S.  W.  Rep.  416. 

19  Wemple  v.  Stewart,  22   Barb. 
154,  and  cases  cited. 

MSiegbert  r.  Stiles,  39  Wise. 
533. 

21  See  Lawton  «.  Chase,  108 
Mass.  238.  Compare  Roe  v. 
Hanson,  5  Lans.  304;  Gill  v.  Mc- 
Namee,  42  N.  Y.  45;  Dixon  v. 
Buck,  4  Barb.  70.  Knowledge  of  a 
witness  derived  from  actual  sales 
is  never  a  test  of  competency,  but 
it  is  always  desired  and  may  be 


shown  for  the  purpose  of  determin- 
ing, not  the  competencj'  of  the 
witness,  but  the  value  to  be  given 
his  testimony.  Davis  v.  North- 
western El.  R.  Co.,  170  111.  595, 
601,  48  N.  E.  Rep.  1058.  The 
owner  of  a  horse  and  buggy  is  pre- 
sumed to  have  such  a  familiarity 
with  them  as  to  know  pretty  nearly, 
if  not  actually,  what  they  were 
worth,  although  he  does  not  buy 
or  sell  horses  or  carriages,  and  may 
testify  to  their  value.  Shea  v. 
Hudson,  165  Mass.  43,  42  N.  E. 
Rep.  114.  In  an  action  for  the 
conversion  of  horses,  a  resident  of 
the  neighborhood,  who  owns  horses 
and  knows  the  horses  converted 
and  says  that  he  knows  "pretty 
nearly  the  market  value  of  such 
horses  at  the  time  of  the  conver- 
sion," may  testify  as  to  the  value; 
although  he  may  say  that  he  does 
not  know  "what  the  market  value 
of  the  horses  was."  Holland  v. 
Huston,  20  Mont.  84,  49  Pac.  Rep. 
390. 

A  bid  submitted  but  not  ac- 
cepted is  evidence  of  what  is  the 
reasonable  value  of  the  goods  com- 
ing precisely  within  the  bid.  Le- 
furgy  v.  Stewart,  69  Hun,  614  mem., 
23  N.  Y.  Supp.  537. 


810 


THE    FACT   OF   SALE 


particular  number  of  sales  in  order  to  establish  the  market 
value;  --  a  single  sale  23  is  relevant  and  admissible  hi  the 
absence  of  better  evidence,  but  not  always  alone  sufficient 
to  establish  the  market  value.24  The  price  obtained  at  auc- 
tion is  competent  evidence  on  the  question  of  value; 25 
though  the  sale  is  an  official  one,  as  by  the  sheriff.26  For 


"  Parmenter  v.  Fitzpatrick,  135 
N.  Y.  190,  31  N.  E.  Rep.  1032. 

"See  Crounse  v.  Fitch,  1  Abb. 
Ct.  App.  Dec.  475.  The  value  for 
which  a  stock  of  goods  may  be 
sold  at  retail,  standing  alone,  does 
not  afford  sufficient  basis  for  de- 
termining their  market  value,  which 
is  what  the  goods  could  have  been 
promptly  sold  for,  in  bulk,  or  in 
convenient  lots.  Needham  Piano 
Co.  v.  Hollingsworth,  91  Tex.  49, 
40  S.  W.  Rep.  787. 

"Graham  v.  Maitland,  6  Abb. 
Pr.  N.  S.  327,  s.  c.,  37  How.  Pr. 
307,  1  Sweeny,  149. 

"Baker  v.  Seavey,  163  Mass. 
522,  47  Am.  St.  Rep.  475,  40  N.  E. 
Rep.  863;  Imhoff  v.  Richards,  48 
Neb.  590,  595,  67  N.  W.  Rep. 
483;  Hazelton  v.  Le  Due,  10  Tucker 
App.  D.  C.  379. 

26  Parmenter  v.  Fitzpatrick,  135 
N.  Y.  190,  31  N.  E.  Rep.  1032. 
Contra  Martinett  v.  Maczkewicz, 
59  N.  J.  L.  11,  14-15,  35  Atl.  Rep. 
662.  In  the  New  Jersey  case  it 
was  said:  "When  a  willing  seller 
and  a  willing  buyer  agree  and  fix 
the  price  of  an  article,  it  is  obvious 
that  it  is  reasonable  to  infer  that 
such  estimation  approximates 
closely  to  the  real  value  of  such 
article;  but  in  an  official  sale  by 
auction  the  owner  has  no  voice  in 
the  affair,  and  each  bidder  is  striv- 


ing to  obtain  the  thing  sold  not  at 
its  actual  worth,  but  at  a  bargain. 
It  is  vain  to  deny,  for  all  experience 
attests  the  fact,  that  as  a  general 
thing,  the  attendants  at  a  public 
auction  of  personal  property  are 
there  with  the  expectation  of  ac- 
quiring the  articles  purchased  much 
below  their  cost  in  the  market.  It 
is  deemed  that,  as  criteria  of  real 
estate,  such  transactions  can  have 
no  effect  except  to  mislead.  Nor 
is  the  affair  ameliorated  to  any 
great  extent  by  the  addition  to  it 
of  the  requirement  of  the  New  York 
courts.  To  show  the  fairness  of 
such  a  procedure  by  the  sheriff 
can  mean  nothing  more  than  that  it 
shall  appear  that  there  was  a  rea- 
sonable attendance  of  bidders, 
and  that  the  sales  were  made  and 
cried  off  in  the  usual  way.  The 
inconvenience  would  be  great  to 
attempt  further  to  test  the  qualities 
of  these  auctions,  as  it  would  often 
occur  that  such  an  investigation 
would  be  more  laborious  than  the 
examination  of  the  mam  issue 
between  the  litigants.  The  re- 
sult is  that  it  is  conceived  that 
these  public  forced  sales  cannot 
be  resorted  to  as  affording  a  reason- 
able standard  of  the  real  value  of 
the  things  thus  sold,  and  that  con- 
sequently the)r  should  not  be  ad- 
mitted in  evidence  for  that  pur- 


ACTIONS   FOR   PRICE   OF   GOODS,    ETC.  811 

the  purpose  of  proving  the  rates  of  a  foreign  market,  state- 
ments and  declarations  of  strangers  to  the  action,  engaged 
in  that  market,  and  made  hi  the  ordinary  course  of  their 
business — for  example,  merchants'  letters  offering  their 
goods  at  a  price — are  competent  evidence  of  the  market 
value  at  the  time  the  declaration  was  made,  without  proof 
of  the  death  of  the  declarant.27 

22.  Prices  Current. 

The  price  list  or  price  current  issued  by  a  merchant  or  his 
agent  in  the  ordinary  course  of  business,28  or  corrected  by 
him  for  a  newspaper,29  is  competent  evidence  of  market 
value  as  against  himself.  In  the  absence  of  better  available 
evidence,  regular  prices  current  or  market  reports,  published 
in  course,  in  a  commercial  journal  pursuant  to  the  profes- 
sional duty  of  the  journalist  to  ascertain  constantly  from 
those  engaged  in  the  market  the  actual  current  rates,  and  tab- 
ulate and  publish  them  for  the  information  and  guidance  of 
the  commercial  world,  are  competent  primafade  evidence  of 
the  contemporaneous  market  price,  on  production  of  the  news- 
paper or  file,  preliminary  proof  of  these  conditions,  and  of 
the  identity  of  the  paper,  being  given.30  Without  some  ex- 
trinsic evidence  of  the  sources  of  the  information,  or  the  mode 
in  which  the  prices  current  were  made  up,  the  publication  is 
incompetent.31 

A  witness  cannot  testify  to  value  or  market  price  whose 
knowledge  is  derived  merely  from  examining  newspaper 

pose.  The  two  following  cases  on  the  question  of  what  was  the 

accord  with  this  view:  Steiner  v.  market  value,  in  France,  of  the 

Tranum,  98  Ala.  315,  and  Cassin  champagne  of  a  particular  maker, 

v.  Marshall,  18  Cal.  689.''  the  price  current  of  another  maker, 

27  Fennerstein's  Champagne,  3  prepared  and  furnished  there  in 

Wall.  114,  1  Greenl.  Ev.,  §  120.  the  usual  course  of  business,  is 

MCliquot's  Champagne,  3  Wall,  relevant,  and  its  effect,  in  con- 

114.  nection  with  other  evidence  of 

29Henkle  v.  Smith,  21  111.  238.  value,  is  a  question  for  the  jury. 

30  Whelan  v.  Lynch,  60  N.  Y.  469,  Cliquot's  Champagne,  3  Wall.  114. 

474,  1  Whart.  Ev.  638,  §  674.  So  31  Whelan  v.  Lynch  (above). 


812  THE    FACT   OF   SALE 

prices  current.32  But  if  the  witness  has  a  knowledge  of  the 
value  from  other  proper  sources,  it  is  no  objection  to  his 
testimony  that  it  is  based  in  part  upon  such  prices  current,33 
or  even  upon  letters  and  invoices  received  by  him  in  the 
usual  course  of  his  business.34 

23.  Opinions  of  Witnesses  as  to  Quality  and  Value. 

Questions  of  value  are  subject  to  the  general  rule  that  in 
matters  requiring  special  experience  or  knowledge,35  not 
presumably  possessed  by  all  the  jurors,  a  witness  shown  to 
be  peculiarly  qualified  by  such  experience  or  knowledge  may 
testify  to  his  opinion 36  on  a  question  of  fact;  and  a 
witness  who  has  such  experience  or  knowledge  with  ref- 
erence to  the  value  of  things  of  the  kind  of  that  in  ques- 
tion 37 — such  as  a  dealer,38  salesman,39  or  bookkeeper  ^  in 
the  trade — may  express  his  opinion  of  values  of  things  of 
the  same  class  as  that  in  question,  even  though  he  has  not 
seen  the  particular  thing  itself.  But  a  witness  having  only 
the  ordinary  experience  of  life,  and  none  in  the  business  in 

"Harris  v.  Ely,  Seld.  Notes,  "Clark  v.  Baird,  9  N.  Y.  183, 

No.  1,  35,  s.  c.,  1  Liv.  Law  Mag.  196;  Woodruff  r.  Imperial  Fire 

145.  Ins.  Co.,*83  N.  Y.  133;  Nelson  v. 

"Whitney  v.  Thatcher,  117  First  Nat.  Bank,  32  U.  S.  App. 
Mass.  527.  Compare  Sisson  v.  554,  570,  69  Fed.  Rep.  798;  Con- 
Cleveland  &  Toledo  R.  R.  Co.,  nell  v.  McXett,  109  Mich.  329,  67 
14  Mich.  489;  Cleveland  &  Toledo  N.  W.  Rep.  344.  From  necessity, 
R.  R.  Co.  v.  Perkins,  17  Id.  296;  the  opinion  of  ordinary'  witnesses 
Laurent  v.  Vaughan,  30  Vt.  90.  acquainted  with  the  value  of 

34  Alfonso   v.    United    States,    2  property    is    admitted,    although 
Story,  421.  they  are  not  experts  in  matters  of 

35  For  instance,  an  ordinary  wit-  value.     Bailie   v.   Western  Assur- 
ness  may  testify  to  the  fact  that  ance  Co.,  49  La.  Ann.  658,  21  So. 
plants  were  dead;   an  expert,  to  Rep.  736. 

his  opinion  as  to  what  killed  them.  38  Bush  v.  Westchester  Fire  Ins. 

Stone  v.  Frost,  6  Lans.  440.  Co.,    2    Supm.    Ct.    (T.    &    C.) 

36  It  is  no  objection  to  receiving  629. 
the  opinion,  that  the  witness  is  a  39  Id. 

party  testifying  in  his  own  behalf.          40  Kerr   v.   McGuire,   28   N.   Y. 
Dickenson  v.  Fitchburgh,  13  Gray,      446,  s.  c.,  28  How.  Pr.  27. 
546,  555. 


ACTIONS    FOR    PRICE    OF    GOODS,    ETC. 


813 


which  the  articles  are  dealt  in,41  or  made  or  used,42  and  not 
having  bought  or  sold,  and  having  no  special  means  of  in- 
formation as  to  market  rates,43  is  not  qualified.  The  mere 
fact  that  he  has  once  bought  or  sold  the  very  article  in  ques- 
tion does  not  necessarily  qualify  him  to  express  an  opinion 
on  its  value;  although  the  price  he  paid  or  received  may  be 
competent  evidence.44 

To  testify  to  the  quality  of  a  particular  thing  it  is  presump- 
tively enough  that  the  witness  has  long  been  a  maker  of  or 
dealer  in  such  articles,  or  otherwise  so  engaged  as  to  be 
practically  familiar  with  the  qualities  involved  in  the  in- 
quiry,45 even  though  he  does  not  know  the  market  prices;  ^ 


41  Teerpenning    v.    Corn    Exch. 
Ins.  Co.,  43  N.  Y.  279;  Bush  v. 
Westchester  Fire  Ins.  Co.  (above). 

42  Winter  v.  Burt,  31  Ala.  33. 

43  See  Whelan  v.  Lynch,  60  N.  Y. 
469. 

"Compare  Chambovet  v.  Cag- 
ney,  35  Super.  Ct.  (J.  &  S.)  474, 
489;  Smith  v.  Hill,  22  Barb.  656; 
Watson  v.  Bauer,  4  Abb.  Pr.  X.  S. 
273.  There  is  much  difference  of 
opinion  and  practice  in  reference 
to  the  degree  of  knowledge  or 
experience  which  will  qualify  the 
witness.  Some  anomalous  rulings 
are  seen  to  be  ill-considered  when  it 
is  remembered,  that  if  the  ques- 
tion is  not  on  the  quality  of  the 
article,  but  on  the  value  of  articles 
of  a  given  quality,  conversance 
with  the  market  rates  is  the  quali- 
fication; if  there  is  no  regular 
market  value,  conversance  with 
other  things  of  the  kind,  and  their 
uses,  fitness,  or  cost,  is  the  quali- 
fication; while,  on  the  other  hand,  • 
if  the  jury  may  be  supposed  con- 
versant with  the  kind  of  article 
and  its  ordinary  values,  the  object 


of  inquiry,  though  in  form  a  ques- 
tion as  to  value,  may  be  really  as 
to  the  grade  or  condition  of  the 
particular  thing  at  the  time  of 
sale.  In  this  class  of  cases  a  wit- 
ness, who  has  in  common  with  the 
jury  only  an  ordinary  knowledge 
of  values,  may  by  reason  of  his 
inspection  of  a  particular  thing 
which  ordinary  knowledge  en- 
ables one  to  value,  be  competent 
to  express  his  opinion  of  its  value 
as  the  direct  and  natural  way  of 
describing  his  judgment  of  its 
grade  and  condition.  In  this  point 
of  view  Smith  v.  Hill  and  Watson 
v.  Bauer  are  sounder  guides  than 
Chambovet  v.  Cagney,  (all  above 
cited),  and  the  ruling  in  Nickley 
v.  Thomas,  22  Barb.  652,  more 
satisfactory  than  Low  v.  Conn., 
&c.  R.  R.  Co.,  45  N.  H.  370,  §  1. 
See  paragraphs  20  and  21. 

45  Hoe  v.  Sanborn,  36  N.  Y.  93, 
s.  c.,  3  Abb.  Pr.  N.  S.  189,  35  How. 
Pr.  197;  Jeffersonville,  &c.  R.  R. 
Co.  v.  Lanahan,  27  Ind.  171. 

46  See  Beecher  v.  Denniston,  13- 
Gray,  354. 


814  THE    FACT   OF   SALE 

but  he  must  have  seen  the  thing  within  a  reasonable  tune 
of  the  date  to  which  evidence  of  value  is  to  be  addressed,  a 
limit  varying  in  the  judicial  discretion  of  the  court,  accord- 
ing to  the  permanent  or  perishable  character  of  the  thing; 47 
and  in  case  of  a  varied  lot  of  merchandise,  the  witness  must 
have  made  a  sufficient  examination  in  detail  to  speak  specif- 
ically of  the  various  parcels  or  grades.48 

After  the  qualities  or  grade  on  which  value  depends  have 
been  proven,  a  witness  qualified  by  special  experience  or 
knowledge  to  testify  to  the  intrinsic  value  of  the  particular 
article,49  or  to  the  market  price  of  such  articles  (as  the  case 
may  require),  may  testify  to  its  value,  although  he  has  not 
seen  the  article.50  Such  testimony  may  be  founded  on  the 
witness  having  heard  or  read  all  the  testimony  which  has 
been  given  by  the  party  on  the  facts  of  quality,  grade,  etc., 
on  which  value  or  price  depends;  in  which  case  the  question 
may  be:  "Assuming  that  the  goods  were  as  described  by 
plaintiff  [or  other  testimony  heard  or  read  by  the  witness], 
what  were  they  worth?"51  Or  it  may  be  called  forth 
by  an  hypothetical  question,  embracing  all  the  same 
facts  which  may  fairly  be  assumed  to  be  sufficiently  in 
evidence.52 

A  witness  to  market  values  must  be  shown  to  be  conver- 

47  See  Judson  v.  Easton,  58  N.  Y.  C.)  adden.  17.    It  is  not  error  to 
664,  affi'g  1  Supm.  Ct.  (T.  &  C.)  allow  the  expert  who  is  familiar 
598.  with  the  particular  thing  to  desig- 

48  Brown  v.  Elliott,  4  Daly,  329,  nate    the    similar    article   he    has 
333,  and  cases  cited.  known  sold  in  general  terms,  as 

"Sturm  v.  Williams,  38  Super.  "like"   the  thing  in  controversy, 

Ct.  (J.  &  S.)  323,  344.  instead  of  describing  it  and  leaving 

50  Mish  v.  Wood,  34  Penn.  St.  the  jury  to  judge  of  its  similarity. 

451;  Orr  v.  Mayor,  &c.  of  N.  Y.,  Hachett  v.  Boston,  &c.  R.  R.  Co., 

64  Barb.  106;  and  see  Draper  v.  35  N.  H.  390,  398. 

Saxton,   118  Mass.  428.     Contra,  "See  McCollum  v.  Seward,  62 

where  the  matter  is  not  one  for  N.  Y.  316. 

expert  testimony.    Hook  v.  Stow-  .       82See  Jackson  v.  N.  Y.  Central 

ell,    30    Ga,   418,   422;    Board   v.  R.  R.  Co.,  2.  Supm.  Ct.  (T.  &  C.) 

Kirk,  1 1  N .  H .  397 ;  and  see  Sunder-  653. 
lin  v.  Wyman,  1  Supm.  Ct.  (T.  & 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  815 

sant  with  prices  at  the  market  in  question,53  but  he  need  not 
be  a  resident  there.54  His  testimony  is  not  necessarily  made 
incompetent  by  the  fact  that  his  knowledge  of  sales  and  prices 
was  derived  from  inquiry  in  the  trade,55  or  by  examination 
of  invoices  and  accounts; 56  nor  by  the  fact  that  his  general 
experience  and  knowledge  is  not  aided  by  knowledge  of 
sales  on  the  very  day  in  question; 57  nor  is  it  made  incom- 
petent by  the  fact  that  his  knowledge  of  market  value  is 
derived  mostly  from  sales  on  credit,  for  by  cross-examination 
the  difference  in  price  between  cash  and  credit  sales  may  be 
ascertained.58  In  cases  where  there  is  a  market  value,  the 
usual  mode  of  proving  it  is  by  a  general  question  as  to  value 
or  price  at  the  particular  time  and  place,  without  reference 
to  actual  sales;  but  in  such  cases  inquiries  as  to  particular 
sales  are  admitted  on  cross-examination,  and  for  the  purpose 
of  testing  the  accuracy  and  extent  of  the  witness'  knowl- 
edge.59 

24.  Time  for  Performance  or  Payment. 

If  the  time  for  delivery  or  payment  is  fixed  by  the  terms 
of  the  writing,  evidence  of  a  contemporaneous  oral  stipula- 
tion for  a  different  time  is  incompetent.60  If  by  not  designat- 

83  Greeley  v.  Stilson,  27  Mich.  »  Dana  v.  Fiedler,  1  E.  D.  Smith, 

153.  But  compare  Lawton  v.  463,  474.  Compare  paragraph  21 

Chase,  108  Mass.  238.  (above). 

"Alfonso  v.  United  States,  2  ""Parol  evidence  that  by  the 

Story,  421.  custom  of  merchants,  the  words 

65  Lush  v.  Druse,  4  Wend.  313;  "to  arrive  by  the  15th  of  Nov." 

Cliquot's  Champagne,  3  Wall.  143.  meant  "deliverable  on  or  before  the 

56  Alfonso   v.   United   States,   2  15th  of  Nov."  held  incompetent. 
Story,  421.  Rogers  v.  Woodruff,  23  Ohio  St. 

57  Norman  v.  Ilsley,  22  Wise.  27;  632,  s.  c.,  13  Am.  Rep.  276;  see 
Belden  v.  Nicolay,  4  E.  D.  Smith,  also  Stewart  v.  Scuder,  4  Zab.  N. 
14.  J.  96;   Berlin  Machine  Works  v. 

58  Judson  v.  Easton,  58  N.  Y.  Jefferson  Wood  Working  Co.,  173 
664,  affi'g  1  Supra.  Ct.  (T.  &  C.)  Ky.  347,  191  S.  W.  Rep.  82. 
598.    See  as  to  sales  in  exchange  Under  a  contract  making  time 
for  things  in  action,  or  at  an  in-  of  its  essence   and   requiring  de- 
flated estimate,  Sturm  v.  Williams,  livery  on  or  about  a  certain  date, 
38  Supm.  Ct.  (J.  &  S.)  323.  it  is  sufficient  if  delivery  be  made 


816 


THE    FACT   OF   SALE 


ing  any  time  in  their  writing,  the  parties  have  made  a  con- 
tract which  by  implication  of  law  allows  a  reasonable  time, 
oral  evidence  of  a  contemporaneous  stipulation  fixing  a  date 
is  incompetent; 61  but  the  circumstances  and  conversations 
of  the  parties  at  the  time  the  contract  was  entered  into  may 
be  proved  for  the  purpose  of  showing  what  they  regarded  as 
a  reasonable  tune.62  Upon  the  same  principle  if  the  writing 
names  no  place  of  delivery,  the  law  fixes  it,  and  oral  evidence 
of  a  contemporaneous  stipulation  for  a  different  place  is  in- 
competent.63 So  if  the  terms  of  the  writing  contemplate  a 

82  Cocker  v.  Franklin  Hemp,  &c. 
Co.  (above). 

"Prompt  delivery"  has  been 
interpreted  as  requiring  delivery 
•within  a  few  days  at  the  latest. 
Acme-Evans  Co.  v.  Hunter,  194  111. 
App.  542.  See  N.  Y.  Pers.  Prop. 
Law,  §  124,  sub.  2. 

"What  is  a  reasonable  time  when 
the  facts  are  undisputed  and  differ- 
ent inferences  cannot  reasonably 
be  drawn  from  the  same  facts,  is 
a  question  of  law."  Wright  v. 
Bank  of  Metropolis,  110  N.  Y. 
237,  249, 18  N.  E.  Rep.  79,  1  L.  R. 
A.  289,  6  Am.  St.  Rep.  356. 

63  La  Farge  v.  Rickett,  5  Wend. 
187,  and  cases  cited. 

As  to  the  necessity  of  delivery 
being'  within  a  reasonable  time 
where  the  contract  is  silent  to  the 
time  for  delivery.  See  Riegal  Sack 


within  a  reasonable  tune  of  that 
date.  Passow  v.  Harris,  29  Cal. 
App.  559,  156  Pac.  Rep.  997. 

It  is  a  material  question  some- 
tunes  to  determine  whether  time 
is  of  the  essence  of  the  contract. 
By  statute,  in  some  states  (see 
Georgia  Code,  §3675,  par.  8)  it 
is  provided  that  "time  is  not  gen- 
erally of  the  essence  of  a  contract; 
but  by  express  stipulation  or  rea- 
sonable construction,  it  may  be- 
come so."  Therefore  if  a  time  is 
fixed  but  there  is  no  express  stipu- 
lation that  it  is  of  the  essence  of 
the  contract,  parol  evidence  is  ad- 
missible to  show  what  is  the  proper 
construction.  Alabama  Const.  Co. 
v.  Continental  Car,  etc.,  Co.,  131 
Ga.  365,  62  S.  E.  Rep.  160. 

61  Greaves  t.  Ashlin,  3  Camp.  426; 
Halliley  v.  Nicholson,  1  Price,  404; 
Cocker  v.  Franklin  Hemp  &  Flax 
Manuf.  Co.,  3  Sumn.  530. 

Under  a  contract  silent  as  to  time 
for  delivery,  the  vendor  is  not 
placed  in  default  by  the  purchaser's 
letter  promising  payment  on  de- 
livery, where  it  fixes  no  tune  for 
such  delivery.  Weinberg  v.  Gash, 
94  Misc.  Rep.  303,  158  N.  Y. 
Supp.  179. 


Co.  v.  Tide-water  Portland  Cement 
Co.,  95  Misc.  202,  158  N.  Y.  Supp. 
954. 

It  has  been  held  that  instruc- 
tions for  shipment  to  a  particular 
place,  do  not  in  themselves  es- 
tablish such  place  as  the  place  for 
delivery.  Robert  McLane  Co.  v. 
Swernemann  &  Schkade,  189  S. 
W.  Rep.  (Tex.  Civ.  App.)  282. 


ACTIONS    FOR    PRICE    OF    GOODS,    ETC.  817 

single  quantity  or  delivery,  oral  evidence  is  not  competent 
to  show  a  contemporaneous  understanding  of  the  parties 
that  on  successive  delivery  in  parcels  payment  should  be 
made  for  each  parcel  as  delivered.64  So  if  the  writing  calls 
for  delivery  of  a  specified  quantity  of  merchandise  in  a 
month  or  year,  or  in  each  of  several  successive  periods  with- 
out other  limitation,  extrinsic  evidence  is  not  competent 
to  show  that  it  was  intended  by  the  parties  that  the  delivery 
within  any  period  should  be  regulated  in  time  and  quantity 
by  the  exigencies  of  the  purchaser's  business.65 

Upon  the  question  whether  the  sale  was  entire,  the  cir- 
cumstance that  the  bargains,  though  for  different  lots  of  the 
same  kind  of  property,  lying  at  different  places,  were  all 
made  on  the  same  day,  is  entitled  to  some  weight.66  So  is 
the  fact  that  all  were  included  in  one  bill.67 

Where  the  contract  omits  to  fix  any  tune  for  payment,  the 
presumption  is  that  the  delivery  and  payment  are  to  be  con- 
current acts.68  If  a  sale  on  credit  is  proved,  evidence  of  a 
usage  to  give  notes  is  competent,  and  if  knowledge  of  it  may 
be  imputed  to  defendant,  it  will  be  presumed  that  the  par- 
ties contracted  with  reference  to  such  usage,  there  being 

Where  there  is  a  question  as  to  Blumenthal,  172  N.  Y.  App.  Div. 

the  place  of  delivery,  and  the  con-  331,  158  N.  Y.  Supp.  393. 

tract  is  in  writing,  it  is  one  for  the  M  Biggs  v.  Whisking,  25  Eng.  L. 

court  to    determine,  and   not  for  &   Eq.    257.     Compare   Swift   v. 

the  jury.     Staackman,   Horschitz  Opdyke,  43  Barb.  274. 

&  Co.  v.  Cary,  197  111.  App.  601.  CT  Id.       Compare     Gardner     v. 

"  Baker  v.  Higgins,  21  N.  Y.  397.  Clark,  21   N.  Y.  399;  Mount  ». 

Compare  Winne  v.  McDonald,  39  Lyon,  49  N.  Y.  552. 

Id.  233;  Gault  v.  Brown,  48  N.  H.  <*Tipton  ».  Feitner,  20  N.  Y. 

183,  s.  c.,  2  Am.  Rep.  210.  423;  Curtis  v.  College  Park  Lumber 

«5  Curtiss  v.  Howell,  39  N.  Y.  211.  Co.,  145  Ga.  601, 89  S.  E.  Rep.  680; 

But    extrinsic   evidence   of    the  Simpson  v.  Einmons,  99  Atl.  Rep. 

capacity  of  seller's  plant  and  his  (Me.)    658.      Otherwise,    perhaps 

ability  to  deliver,  is  admissible  as  where  the  seller  does  not  under- 

to  what  constitutes   a  reasonable  take  to  deliver,  as  in  a  contract 

time  after  the  giving  of  the  speci-  for  sand  to  be  excavated  and  car- 

fications  pursuant   to   a   contract  ried  away  within  a  year.    Brehen 

silent  as  to  specifications  and  the  v.     O'Donnell,     34     N.     J.    Law, 

time    for    delivery.     Velleman    v.  408. 


818 


THE    FACT   OF   SALE 


nothing  in  the  contract  to  the  contrary.69  If  a  term  of  credit, 
or  payment  in  negotiable  paper,  or  the  like,  was  agreed  for, 
the  seller  may  recover  immediately,  regardless  of  the  stipu- 
lation, on  proof  that  the  defendant,  on  being  requested  to 
pay  the  amount  due,  or  give  his  notes  at  long  periods,  or  make 
some  arrangement  in  reference  to  the  debt,  absolutely  re- 
fused to  perform,70  or  that  defendant  induced  plaintiff  to  give 
the  credit  by  fraud.71 

25.  Conditions  and  Warranties. 

Where  the  obligations  are  concurrent,  either  who  seeks  to 
enforce  the  obligation  of  the  other  must  prove  performance  of 
his  own,  or  an  offer  to  perform.72  But  under  a  stipulation 
to  do  an  act  if  called  for,  or  when  or  as  directed  by  the  other, 
the  burden  is  on  the  latter  to  prove  that  he  called  for  or 
directed  the  act.73  Where  there  is  a  complete  actual  delivery 
of  goods  sold  on  a  condition,  the  burden  is  on  him  who  claims 
that  the  condition  was  not  waived  by  delivery,  of  showing 


Where  the  contract  provides 
for  payment  in  kind,  but  is  silent 
as  to  time,  the  law  implies  that 
payment  in  such  manner  must  be 
made  within  a  reasonable  time. 
Nelson  &  Wallace  v.  Gibson,  98 
Atl.  Rep.  (Vt.)  1006. 

Where  goods  were  shipped  C.  0. 
D.  and  so  wrapped  as  to  make  an 
examination  by  the  buyer  impos- 
sible, hi  the  absence  of  agreement, 
it  has  been  held  a  question  for  the 
jury  whether  the  buyer  was  bound 
to  accept  the  goods  without  an 
opportunity  to  examine  them. 
Louisville  Lithographic  Co.  v. 
Schedler,  63  S.  W.  Rep.  8,  23 
Ky.  Law  Rep.  465. 

69  Salmon   Falls   Manuf.   Co.   v. 
Goddard,  14  How.  U.  S.  446. 

70  Lee  v.  Decker,  6  Abb.  Pr.  N.  S. 
392;  Wills  v.  Simmonds,  8  Hun, 


189,  and  cases  cited;  Hochster 
v.  De  La  Tour,  2  Ell.  &  B.  678. 
And  see  Snoot's  Case,  15  Wall.  36. 
In  the  absence  of  a  stipulation 
for  credit,  the  fact  that  notes  were 
taken  for  the  price  does  not  pre- 
vent the  seller  from  suing  on  the 
price  before  the  notes  mature. 
Fuller  v.  Negus,  55  Hun,  608,  8 
N.  Y.  Supp.  681. 

71  Weigand  v.  Sichel,  4  Abb.  Ct. 
App.  Dec.  592,  affi'g  34  Barb.  84; 
Roth  v.  Palmer,  27  Barb.  652,  and 
cases  cited. 

72  Dunham  v.  Pettee,  8  N.  Y. 
508;  Hanhart  v.  Labe  Importing 
Co.,  157  N.  Y.  Supp.  897;  Pabst 
Brewing  Co.  v.  E.  Clemens  Horst 
Co.,  229  Fed.  Rep.  913,  144  C.  C. 
A.  195. 

"Hollister    v.    Bender,    1    Hill, 
150;  West  v.  Newton,  1  Duer,  277. 


ACTIONS   FOR   PRICE    OF    GOODS,    ETC.  819 

that  fact.74  If  plaintiff's  evidence  shows  a  warranty  he  must 
also  show  that  the  thing  corresponded  to  it,  or  that  defend- 
ant, by  failing  seasonably  to  object,  or  otherwise,  waived  it. 
The  mode  of  this  proof  is  stated  hi  connection  with  warran- 
ties. 

26.  Options. 

It  is  not  competent  for  one  sued  upon  his  written  contract, 
to  show  a  parol  agreement  made  prior  or  contemporaneously 
with  it,  that  he  might  countermand  it  subsequently  if  he 
chose,  and  that  he  did  so.  Parol  evidence  that  the  com- 
mencement of  the  obligation  was  suspended,  might  be  re- 
ceived, that  is  to  say,  of  a  condition  precedent,  but  not  of  a 
defeasance  or  condition  subsequent.75  But  a  mere  memoran- 
dum, unsigned,  though  indicating  a  sale,  may  be  explained 
by  parol  evidence  that  it  was  a  sale  on  return,  or  a  delivery 
to  an  agent  to  sell.76  Not  so  of  a  written  contract.77  But 
under  an  optional  contract,  for  which  writing  is  required, 
the  option  may  be  exercised  by  parol  notice.78  An  optional 
contract  for  future  sale  is  not  presumed  to  be  a  gaming 
contract,  but  the  burden  is  on  him  who  impeaches  it  to  show 
the  illegal  intent.79 

74  Smith  v.  Lynes,  5  N.  Y.  41,  75Wemple  v.  Knopf,   15  Minn, 

rev'g  3  Sandf .  203.  440,  s.  c.,  2  Am.  Rep.  147. 

The  burden  of  proving  accept-  Evidence  of  the  conditional  na- 

ance  of  goods  sold  subject  to  trial,  ture    of    other    and    independent 

is  upon  the  vendor.    McMillan  v.  transactions    is    inadmissible    to 

Jaeger  Mfg.  Co.,  159  N.  W.  Rep.  prove  that  the  sale  in  question, 

(Iowa)  208;  Keller  v.  Strauss,  35  absolute  in  itself,  was  also  condi- 

Misc.  (N.  Y.)  35,  70  N.  Y.  Supp.  tional.      Edson   Keith    &    Co.    r. 

126.  Eisendrath,  192  111.  App.  155. 

The  payment  of  part  of  the  pur-  76  Errico  v.  Brand,  9  Hun,  654. 

chase   price   does   not   necessarily  ""  Marsh  v.  Wickharn,  14  Johns, 

operate  as  a  waiver  of  the  condi-  167;  and  see  Depew  v.  Keyser,  3 

tions  and  guarantees  of  the  contract  Duer,  335. 

and  an  acceptance  of  the  goods.  ™  Brown     v.     Hall,     5     Lans. 

Adkins,    Young    &    Allen    Co.    v.  177. 

Rhinelander  P.  Co.,  199  111.  App.  "Story  ».   Solomon,  71   N.  Y. 

347.  420,  affi'g  6  Daly,  531. 


820 


THE    FACT   OF   SALE 


27.  Subsequent  Modification. 

At  common  law,  the  fact  that  the  contract  was  in  writing 
does  not  exclude  oral  evidence  of  a  subsequent  modification, 
if  the  instrument  was  not  under  seal ; 80  and  even  if  under 
seal,  a  subsequent  waiver  of  a  stipulation  as  to  tune  may 
be  proven  as  an  estoppel.81  If  the  statute  of  frauds  requires 
a  writing,  the  modification  sought  to  be  proved  must  be 
evidenced  by  writing  as  well  as  the  original  contract.82  A 
party  alleging  a  modification  of  a  written  agreement  to  have 
been  made  by  conduct  on  the  other  side  amounting  to  a  sub- 
stitution of  another  arrangement,  must  clearly  show  not 
only  his  own  understanding  as  to  the  new  terms,  but  that 
the  other  party  had  the  same  understanding.83 

28.  Delivery  or  Offer. 

In  an  action  by  a  seller  of  goods  sold  to  be  paid  for  on 


80  Weigand  v.  Sichel,  4  Abb.  Ct. 
App. 

The  burden  of  proving  a  sub- 
sequent oral  agreement  to  a  writ- 
ten contract,  is  upon  the  party 
setting  it  up.  Vinegar  Bend 
Lumber  Co.  v.  Soule  Steam  Feed 
Works,  182  Ala.  146,  62  So.  Rep. 
279. 

81  Hadden  v.  Dimmick,  16  Abb. 
Pr.  N.  S.  140;  Fleming  v.  Gilbert, 
3  Johns.  528;  Townsend  v.  Empire 
Stone  Dressing  Co.,  6  Duer,  208. 

A  subsequent  modification  does 
not  in  itself  waive  a  party's  right 
to  damages  for  a  past  breach, 
unless  the  terms  of  the  modification 
expressly  or  impliedly  contemplate 
such  a  waiver.  Peak  ».  Interna- 
tional Harvester  Co.,  194  Mo.  A. 
128,  186  S.  W.  Rep.  574. 

82  Hickman  v.  Haynes,  L.  R.  10 
C.  P.  598,  605,  s.  c.,  14  Moak's 
Eng.  447,  453;  Swain  v.  Semens,  9 


Wall.  271,  and  cases  cited.  Contra, 
Cummings  v.  Arnold,  5  Mete.  486; 
Gault  v.  Brown,  48  N.  H.  183; 
and  see  Benj.  on  S.,  §  216,  and 
notes.  On  the  ground  that  the 
terms  of  a  sealed  agreement  can- 
not be  varied  by  a  subsequent 
parol  contract,  so  as  to  authorize 
a  suit  on  the  sealed  agreement, 
which  suit  without  the  parol  con- 
tract could  not  be  sustained;  it 
has  been  held  that  the  existence 
of  the  sealed  agreement,  in  such  a 
case,  is  no  bar  to  a  suit  on  the  parol 
contract.  Sinard  v.  Patterson,  3 
Blackf.  353,  357. 

83  Utley  v.  Donaldson,  94  U.  S. 
48,  and  cases  cited. 

Where  the  plaintiff's  case  is 
based  upon  an  agreement  of  rescis- 
sion, the  original  contract  is  ad- 
missible in  evidence  upon  the  ques- 
tion of  the  probability  of  contro- 
verted facts.  Johnson  v.  Shuford, 


ACTIONS   FOR   PRICE   OF   GOODS,    ETC.  821 

delivery,  plaintiff  must  prove,  not  only  that  the  buyer  failed 
to  pay,  but  that  he  himself  offered  to  deliver  the  goods. 
The  obligations  of  the  parties  to  such  a  contract  being  con- 
current, whichever  one  seeks  to  enforce  it  must  show  a 
tender  of  performance  on  his  part.  Until  that  be  shown,  he 
is  himself  in  default.84  If  he  proves  a  delivery  at  the  place 
agreed,  and  that  there  remained  nothing  further  for  him  to 
do,  he  need  not  show  an  acceptance  by  the  buyer,85  unless 
the  order  or  contract  was  not  strictly  complied  with  by 
plaintiff.86 

Delivery  may  be  proved  by  evidence  of  an  admission  by 
the  buyer  of  the  correctness  of  the  account  against  him, 
there  being  no  dispute  on  the  trial  as  to  the  amount; 87  and 
from  evidence  that  he  denied  having  received  part  of  the 
goods,  it  may  be  inferred  that  he  received  the  other  articles 
mentioned  in  the  bill; 88  and  his  admission  that  he  had  had 
the  goods,  is  sufficient  evidence  of  delivery,  to  go  to  the  jury, 
though  it  appear  they  were,  in  fact,  delivered  to  another 

91  Conn.  1,  98  Atl.  Rep.  333.    See  of  a  return  of  the  goods.    German 

also    Ballard    v.    Friedeberg,    164  -Publication    Soc.    v.    Pichler,    97 

N.  Y.  Supp.  912.  Misc.  (N.  Y.)  644,  162  N.  Y.  Supp. 

"Dunham  v.  Pettee,  8  N.  Y.  260. 

(4  Seld.)  508,  4  E.  D.  Smith,  500;          But  see  N.  Y.  Pers.  Prop.  Law, 

Reeb  v.  Bronson,  196  111;  App.  518;  §  144.      Apparently     the    seller's 

Elliott  Supply  Co.   v.   Green,  35  common  law  right  to  sue  for  the 

N.  D.  641,  160  N.  W.  Rep.  1002;  purchase  price  has  been  limited  by 

J.    &    G.    Lippman    v.    Jeffords-  the  Sales  Act. 
Schoenmann  Produce  Co.,  184  S.          »  Corning  v.  Colt,  5  Wend.  253. 
W.  Rep.  (Tex.  Civ.  App.)  534.  Under    a    contract    calling    for 

Where  the  contract  merely  ob-  payment  in  thirty  days  from  de- 

ligates  the  seller  to  load  the  goods,  livery,  a  valid  tender  of  delivery 

their  late  arrival  by  reason  of  de-  is  not  established  by  proof  of  the 

lays  in  their  hauling  is  no  defense  seller's  offer  to  deliver  the  goods 

in  an  action  for  the  price.    Nelson  if  paid  for  in  advance.     Bond  v. 

v.  Miller,  195  111.  App.  233.  Duntley  Mfg.  Co.,  195  111.  App. 

88  Nichols  v.  Morse,  100  Mass.  576. 
523.  »N.  Y.    Ice   Co.  v.  Parker,  21 

Having  proved  delivery,  plain-  How.  Pr.  302. 

tiff's  prima  fade  case  is  not  re-         M  Power  v.  Root,  3  E.  D.  Smith, 

butted  by  defendant's  mere  proof  70. 


822  THE   FACT   OF   SALE 

person,89  especially  if  by  his  authority.90  So  his  promise  to 
pay  a  draft  which  had  been  drawn  on  him  for  the  price  of 
the  goods  is,  with  other  evidence  tending  to  show  delivery, 
competent  evidence  of  delivery.91  An  order  drawn  by  de- 
fendant for  the  deliver}'  of  the  goods  to  the  bearer,  or  to  a 
person  shown  to  have  had  possession  of  the  order,  is,  when 
produced  from  the  possession  of  the  drawee,  and  its  execu- 
tion proved,  prima  fade  evidence  that  he  delivered  the 
goods.92  If  the  order  is  in  favor  of  a  specified  person,  the 
receipt  of  such  person  is  competent  against  the  drawer.93 
Delivery  cannot  be  made  out  by  proof  of  a  usage  to  treat 
as  a  delivery  that  which  is  not  in  law  a  delivery.94  De- 
livery if  shown  is  presumed,  in  the  absence  of  evidence  to 
the  contrary,  to  be  in  fulfillment  of  the  contract;  but  evi- 
dence is  competent  that  it  was  made  for  the  purpose  of  al- 
lowing examination  of  the  goods,  and  in  such  case,  evidence 
that  this  was  the  usual  course  of  dealing  is  competent, 
though  it  would  not  be,  in  the  absence  of  anything  else  to 
qualify  legal  effect  of  a  delivery.9?  If  the  circumstances 

89  Griffin  v.  Keith,  1  Hilt.  58.  92  Alvord  v.  Baker,  9  Wend.  323. 
Where  the  purchaser  authorizes      Contra,  Blount  v.  Starkey,  1  Tayl. 

an    agent    to    receive    the    goods  N.  C.  110,  s.  c.,2Hayw.  75. 

bought,    and    the    agent    accepts  *3  Rawson  v.  Adams,  17  Johns, 

some  which  are  not  of  the  char-  130. 

acter  contracted  for,  the  purchaser  As  to  the  admissibility  of  receipts 

is  bound  by  the  acceptance  of  his  from  a  railway  company  for  the 

agent,  although  the  latter  had  no  goods,  see  Gross  ».  Feehan,   110 

knowledge  of  the  terms  of  the  con-  Iowa,  163,  81  N.  W.  Rep.  235. 

tract.    Gorham  v.  Dallas,  etc.,  Ry.  94  Suydam  v.  Clark,  2  Sandf.  133. 

Co.,  106  S.  W.  Rep.   (Tex.  Civ.  And  see  Smith  v.  Lynes,  3  Id.  203, 

A.)  930.  5  N.  Y.  41. 

90  Kepple  v.  Stoddard,   193  111.  See,  as  to  admissibility  of  evi- 
App.  301;  Monroe  v.  Hoff,  5  Den.  dence  of  usage  to  affect  delivery 
360.  under    the    Sales    Act,    Miller    v. 

91  Patterson  v.  Stettauer,  40  Su-  Harvey,  83  Misc.  59,  144  N.  Y. 
per.  Ct.  (J.  &  S.)  54.  Supp.  624. 

So  also  is  the  giving  of  a  note  for  -&  Haskins  v.  Warren,  115  Mass. 

the  purchase  price.     Consolidated  514;  Hackney  Mfg.  Co.  v.  Celum, 

Lumber   Co.    v.    Frew,    162    Pac.  189  S.  W.  Rep.  (Tex.  Civ.  App.) 

Rep.  (Cal.  App.)  430.  988. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


823 


relied  on  as  constituting  delivery  or  acceptance  are  equivo- 
cal, the  person  who  performed  either  act  may  testify  to  his 
intent  hi  doing  it.96 

Evidence  of  discrepancy  hi  size  or  weights  of  packages  is 
met  by  showing  that  the  buyer  waived  it  by  receiving  them 
with  knowledge.97  If  the  sale  was  subject  to  inspection  of  a 
third  person,  there  should  be  evidence  of  his  determination,98 
and  in  the  form  contemplated  by  the  contract;  but  this  may 
be  dispensed  with  by  a  waiver.99  Inspection  duly  had  under 
such  a  contract  is  conclusive.1 

29.  Delivery  through  Carrier. 

Evidence  of  the  shipping  of  goods  ordered  by  defendants, 
and  the  mailing  of  the  bills  of  lading  to  defendants,  and  that 
the  bills  were  not  returned,  and  that  at  the  terminus  the 
carrier's  servant  delivered  merchandise  such  as  is  described, 
to  defendants,  and  that  they  paid  the  freight  bills  without 
objection,  is  prima  fade,  and,  if  unexplained,  sufficient  evi- 


See  Model  Mill  Co.  v.  Caro- 
lina, etc.,  R.  Co.,  136  Term.  211, 
188  S.  W.  Rep.  936;  Emery  Thomp- 
son Machine  &  Supply  Co.  v. 
Graves,  91  Conn.  71,  98  Atl.  Rep. 
331;  Robert  McLane  Co.  v.  Swerne- 
mann  &  Schkade,  189  S.  W.  Rep. 
(Tex.  Civ.  App.)  282;  Allaire, 
Woodward  &  Co.  v.  Cole,  187 
S.  W.  Rep.  (Mo.  App.)  816. 

What  constitutes  a  reasonable 
time  depends  on  the  facts  of  each 
particular  case.  Decker  v.  Braver- 
man,  196  111.  App.  387;  Lane  v. 
McLay,  91  Conn.  185,  99  Atl.  Rep. 
498. 

94  Hale  v.  Taylor,  45  N.  H.  405; 
Southwestern  R.  R.  Co.  v.  Rowan, 
43  Ga.  411.  Compare  Folsom 
v.  Batchelder,  2  Fost.  (N.  H.)  47. 

97  Fitch  v.  Carpenter,  40  Barb. 
40. 


•"McAndrews  v.  Santee,  7  Abb. 
Pr.  N.  S.  408,  s.  c.,  57  Barb.  193; 
Stephens  v.  Santee,  49  N.  Y.  35, 
rev'g  51  Barb.  532. 

"Clinton  v.  Brown,  41  Barb. 
226;  Gillespie  v.  Carpenter,  1 
Robt.  65,  s.  c.,  25  How.  Pr.  203; 
Delafield  v.  De  Grauw,  9  Bosw. 
1, 1  Abb.  Ct.  App.  Dec.  500. 

1  Severcool  v.  Farewell,  17  Mich. 
308.  Otherwise  of  mere  official 
inspection.  Clintsman  v.  Northrop, 
8  Cow.  45;  Williams  v.  Merle,  41 
Wend.  80. 

The  inspection  or  estimate  of  a 
third  person  pursuant  to  a  con- 
tract is  binding  only  upon  the  par- 
ties to  that  contract  and  not  upon 
strangers  who  might  be  brought 
into  relation  with  the  subject 
matter  of  the  inspection  or  esti- 
mate. Gorham  v.  Dallas,  etc., 


824 


THE    FACT   OF   SALE 


dence  of  delivery.2  If  the  seller  sent  the  goods  in  a  manner 
directed  by  the  buyer,  his  mistake  in  addressing  them  will 
not  defeat  his  right  to  recover,  unless  there  be  some  evidence 
that  the  loss  was  attributed  to  the  error;  hi  other  words,  that 
the  error  was  material.3  If  the  mode  of  transportation  was 
not  fixed  by  the  contract,  evidence  of  usage  is  competent 
on  the  question  of  the  duty  of  the  seller  in  respect  to  taking 
and  forwarding  a  bill  of  lading.4 

30.  Tender. 

An  averment  of  tender  (when  it  is  an  act  in  pais,  not  part 
of  the  contract)  simply  affirms  that  the  party  had  done  all 
in  his  power,  toward  fulfilling  his  obligation;  and  under  this 
averment,  proof  that  the  other  party  had  prevented  or  dis- 


Ry.  Co.,  106  S.  W.  Rep.  (Tex. 
Civ.  A.)  930. 

J  Cooper  v.  Coates,  21  Wall.  110. 
If  delivery  to  the  carrier  is  full  per- 
formance, receipt  by  the  buyer 
need  not  be  shown.  Pacific  Iron 
Works  v.  Long  Island  R.  Co.,  62 
N.  Y.  272;  Sethness  Co.  v.  Home 
Ade  Bottling  Co.,  Ill  Miss.  151, 
71  So.  Rep.  308. 

Where  it  is  the  clear  intent  of 
the  parties  that  actual  delivery  to 
the  purchaser  must  be  made,  proof 
of  mere  delivery  to  a  carrier  will 
not  sustain  a  recovery  on  the  part 
of  the  vendor.  Hauptman  v. 
Miller,  94  Misc.  266,  157  N.  Y. 
Supp.  1104. 

Delivery  of  the  goods  by  the 
seller  to  a  carrier  pursuant  to  an 
order  from  the  defendant  is  deemed 
a  delivery  to  the  buyer.  Bloom 
v.  Edward  Miller  &  Co.,  176  S.  W. 
Rep.  (Ark.)  673. 

8  Garretson  v.  Selby,  37  Iowa, 
529,  s.  c.,  18  Am.  Rep.  14. 

Proof  of  authority  to  ship  the 


goods  to  any  one  but  the  pur- 
chaser must  be  made  to  warrant 
a  recovery.  Cobb  v.  Riley,  190 
S.  W.  Rep.  (Tex.  Civ.  App.)  517. 

Evidence  as  to  how  the  goods 
were  directed  is  admissible  "not 
only  as  a  step  in  the  proof  of  the 
delivery  of  the  goods,  but  in  con- 
nection with  the  bill  and  letters  as 
evidence  of  an  admission."  Bertha 
Mineral  Co.  v.  Morrill,  171  Mass. 
167,  50  N.  E.  Rep.  534. 

4  Johnson  v.  Stoddard,  100  Mass. 
306;  Putnam  v.  Tillotson,  13  Mete. 
517.  Compare  Magruder  v.  Gage, 
33  Md.  344. 

Evidence  of  previous  usage  is 
likewise  admissible  as  to  the  man- 
ner of  delivery  required  by  the 
contract,  where  the  latter  is  silent 
upon  the  point.  Hoffman  Bros. 
Produce  Co.  v.  I.  V.  Horn  Co.,  158 
N.  Y.  Supp.  401. 

Where  the  contract  provides  for 
delivery  at  the  purchaser's  place 
of  business,  proof  of  delivery  to  a 
carrier  is  not  sufficient.  Robbing 


ACTIONS    FOR    PRICE    OF   GOODS,    ETC. 


825 


pensed  with  some  of  the  legal  requisites  of  a  formal  tender, 
is  admissible.5  Evidence  that  the  person  making  the  tender 
found  at  the  place  of  business  of  the  other  party  a  person 
answering  to  the  name,  who  said  he  was  the  man,  and  ad- 
mitted the  contract  to  be  his,  but  refused  to  pay  the  money, 
is  competent  to  go  to  a  jury  upon  the  question  of  identity, 
and  sufficient  to  uphold  a  verdict  hi  the  absence  of  all  evi- 
dence tending  to  raise  any  suspicion  of  mistake  or  collusion.6 
Evidence  of  a  refusal 7  or  declaration  of  inability  8  either  by 
the  buyer,9  as  to  receiving  or  paying,  or  by  the  seller,10  as 


v.  Brazil  Syndicate  R.  &  B.  Co., 
114  N.  E.  Rep.  (Ind.  App.)  707. 

6  Holmes  v.  Holmes,  9  N.  Y. 
525,  affi'g  12  Barb.  137.  Compare 
5  Duer,  336;  Bond  v.  Duntley 
Mfg.  Co.,  195  Til.  App.  576. 

Prior  to  the  Sales  Act  it  was 
held  that  "upon  the  refusal  of  the 
vendee  to  accept  and  pay  the  price, 
the  vendor,  upon  proper  notice, 
may  sell  the  property  and  recover 
the  difference,  or  he  may  sue  for 
the  difference  between  the  con- 
tract and  actual  price,  in  which 
case  he  elects  to  retain  the  property 
as  his  own,  or  he  may  recover  the 
contract  price,  in  which  case  he 
holds  the  property  as  trustee  for 
the  vendee,  and  is  bound  to  deliver 
it,  whenever  demanded,  upon  re- 
ceiving payment  of  the  price." 
Hayden  v.  Demets,  53  N.  Y.  426, 
431.  This  remedy  to  sue  for  the 
purchase  price  where  the  buyer 
refuses  to  accept,  has  been  limited 
by  the  Sales  Act  to  purchases  of 
goods  which  cannot  readily  be 
resold  for  a  reasonable  price,  and 
to  cases  where,  under  the  contract, 
the  price  is  payable  on  a  day  cer- 
tain, irrespective  of  delivery  or 


transfer  of  title.     Personal  Prop- 
erty Law  (N.  Y.  Cons.  Laws),  §  144. 

6  Howard  v.  Holbrook,  9  Bosw. 
237,  s.  c.,  23  How.  Pr.  64. 

7  Dana  v.  Fiedler,  1  E.  D.  Smith, 
463;   Wolfe   City   Milling   Co.   v. 
Ward,  185  S.  W.  Rep.  (Tex.)  663; 
Torkomian   v.   Russell,   90   Conn. 
481,  97  Atl.  Rep.  760;  Riegal  Sack 
Co.  v.  Tidewater  Portland  Cement 
Co.,    95    Misc.    202,    158    N.    Y. 
Supp.  954. 

In  like  manner  proof  of  a  formal 
tender  is  not  a  condition  precedent 
to  the  vendor's  right  of  recovery, 
where  the  purchaser  was  not  pres- 
ent at  the  time  and  place  set  for 
delivery  by  the  contract.  Gaines 
v.  R.  J.  Reynolds  Tobacco  Co., 
171  Ky.  783,  188  S.  W.  Rep.  847. 

8  Wheeler  v.  Garcia,  40  N.  Y. 
584,  affi'g  2  Robt.  280;  Passow  v. 
Harris,  29  Cal.  App.  559,  156  Pac. 
Rep.  997. 

9  Bunge   v.    Koop,    5    Robt.    1 ; 
Gaines  v.  R.  J.  Reynolds  Tobacco 
Co.,  171  Ky.  783,  188  S.  W.  Rep. 
847. 

10  Wheeler    v.    Garcia    (above). 
Weinberg  v.  Gash,  94  Misc.  303, 
158  N.  Y.  Supp.  179. 


826 


THE   FACT   OF   SALE 


to  delivery,  made  to  the  other  party  n  on  his  due  demand,12 
dispenses  with  proof  of  formal  tender. 

31.  Packing  and  Freight. 

In  the  absence  of  agreement  there  is  no  implied  promise  to 
pay  for  the  packing  done  for  the  purpose  of  making  delivery 
as  agreed,  even  though  the  goods  were  put  into  the  buyer's 
cases  or  bags.13  But  evidence  of  usage  is  competent  for  the 
purpose  of  showing  which  party  is  chargeable  with  expenses 
of  packing,  wrappers  or  cases,  and  freight.14 

32.  The  Passing  of  the  Title. 

The  question  whether  the  property  had  passed  at  any 
given  time  is  one  of  intention,  which,  if  not  expressed,  is  to 
be  collected  from  all  the  circumstances,  and  no  single  cir- 
cumstance is  necessarily  conclusive  in  all  cases,  but  the  con- 
clusion to  be  drawn  must  depend  on  a  balance  of  the  various 
circumstances  on  one  side  and  the  other.15  The  following 


"Otherwise  of  a  mere  declara- 
tion to  a  stranger.  McDonald  v. 
Williams,  1  Hilt.  365. 

12  Wheeler  v.  Garcia  (above).   As 
to  a  refusal  deliberately  made  in 
anticipation  of  the  time  for  a  de- 
mand, and  with  intent  that  it  may 
be  acted  on,  see  17  Q.  B.  127,  s.  c., 
15  Jur.  877,  6  Eng.  L.  &  Eq.  230, 
2  El.  &  B.  678,  s.  c.,  17  Jur.  972, 
20  Eng.  L.  &  Eq.  157,  42  N.  Y. 
246,  61  Td.  362,  69  Id.  293, 16  Abb. 
Pr.  N.  S.  428,  1  Abb.  New  Cas.  93. 

13  Cole  v.  Kerr,  20  Vt.  21.   Contra, 
Burr  v.  Williams,  23  Ark.  244.  ' 

Subdivision  5  of  §  43  of  the  Uni- 
form Sales  Act  provides:  "Un- 
less otherwise  agreed,  the  expenses 
of  and  incidental  to  putting  the 
goods  into  a  deliverable  state 
must  be  borne  by  the  seller." 

A  sale  f.  o.  b.  cars  obligates  the 
seller  to  secure  the  cars  and  load 


the  merchandise  thereon.  Gulp 
v.  Sandoval,  159  Pac.  Rep.  (N.  M.) 
956,  L.  R.  A.,  1917,  A.  1157. 

14  Robinson  v.  United  States,  13 
Wall.   363;   Howe   v.   Hardy,   106 
Mass.  329;  Benj.  on  S.,  §  698.    See 
Martin  v.  Sclafani,  159  N.  Y.  Supp. 
41. 

15  Terry  v.  Wheeler,  25  N.  Y. 
520.    The  court  in  this  case  said: 
"The  questions  which  arise  in  such 
cases,   as  to  sales,   are   questions 
of  intention,  such  as  arise  hi  all 
other    cases    of    interpretation    of 
contracts,  and  when  the  facts  are 
ascertained,  either  by  the  written 
agreement  of  the  parties  or  by  the 
findings  of  a  court,  as  they  are 
here,  they  are  questions  of  law." 
A  stipulation  for  "cash  on  bill  of 
lading"  would,  in  the  absence  of 
other  circumstances,  be  sufficient 
evidence  that  title  was  not  to  pass 


ACTIONS    FOR   PRICE    OF   GOODS,    ETC.  827 

are  the  rules  provided  by  the  Uniform  Sales  Act  for  ascer- 
taining the  intention:  16 

1.  Where  there  is  an  unconditional  contract  to  sell  specific 
goods,  in  a  deliverable  state,  the  property  in  the  goods  passes 
to  the  buyer  when  the  contract  is  made  and  it  is  immaterial 
whether  the  tune  of  payment,  or  the  tune  of  delivery,  or 
both,  be  postponed.17 

2.  Where  there  is  a  contract  to  sell  specific  goods  and  the 
seller  is  bound  to  do  something  to  the  goods,  for  the  purpose 
of  putting  them  into  a  deliverable  state,  the  property  does 
not  pass  until  such  thing  be  done.18 

3.  When  goods  are  delivered  to  the  buyer  "on  sale  or  re- 
turn," or,  on  other  terms  indicating  an  intention  to  make  a 
present  sale,  but  to  give  the  buyer  an  option  to  return  the 
goods  instead  of  paying  the  price,  the  property  passes  to  the 
buyer  on  delivery,  but  he  may  revest  the  property  in  the 
seller  by  returning  or  tendering  the  goods  within  the  time 
fixed  hi  the  contract,  or,  if  no  time  has  been  fixed,  within  a 
reasonable  time.19    When  goods  are  delivered  to  the  buyer 

before  payment;  but  it  may  be  "This  is  substantially  a  re- 
countervailed  by  such  circum-  statement  of  the  rule  at  common 
stances  as  that  the  goods  were  law.  Sanitary  Carpet  Cleaner  v. 
packed  in  the  buyer's  sacks,  that  Reed  Mfg.  Co.,  159  App.  Div.  587, 
part  payment  had  been  made  in  145  N.  Y.  Supp.  218. 
earnest,  and  that  the  goods  were  18  This  rule  is  also  a  restatement 
deliverable  free  on  board.  Ogg  v.  of  a  common-law  principle.  Blos- 
Shuter,  L.  R.  10  C.  P.  159,  s.  c.,  11  som  v.  Shotter,  59  Hun,  481,  13  N. 
Moak's  Eng.  316;  R.  H.  Thomas  Y.  Supp.  523,  aff'd  in  128  N.  Y. 
Co.  v.  Lewis  (W.  Va.),  90  S.  E.  679,  29  N.  E.  Rep.  145.  See  Auto- 
Rep.  816.  matic  Time  Table  Advertising  Co. 

This  question  is  now  fully  cov-  v.  Automatic  Time  Table  Co.,  208 

ered  by  the  provisions  of  the  Uni-  Mass.  252,  94  N.  E.  462;  Anderson 

form  Sales  Act.  v.  Morice,  L.  R.  10  C.  P.  609,  618, 

The  mere  giving  of  an  option  to  rev'g  11  Eng.  Rep.  252,  s.  c.,  14 

purchase  with  an  exchange  of  pos-  Moak's  Eng.  455,  463;  Ganson  v. 

session  at  the  time  does  not  pass  Madigan,  15  Wis.  144;  Dexter  fl.Nor- 

title.     McKey  v.  Clark,  233  Fed.  ton,  47  N.  Y.  62, 64, 7  Am.  Rep.  415. 

Rep.  928,  147  C.  C.  A.  602.  19  This  part  of  the  third  rule  is 

16  Personal  Property  Law  (N.  Y.  also  in  conformity  with  the  com- 

Cons.  Laws),§  100.  mon  law  of  New  York.     Greacen 


828  THE  FACT  OF  SALE 

on  approval  or  on  trial  or  on  satisfaction,  or  other  similar 
terms,  the  property  therein  passes  to  the  buyer:  (a)  When 
he  signifies  his  approval  or  acceptance  to  the  seller  or  does 
any  other  act  adopting  the  transaction;  (b)  if  he  does  not 
signify  his  approval  or  acceptance  to  the  seller,  but  retains 
the  goods  without  giving  notice  of  rejection,  then  if  a  time 
has  been  fixed  for  the  return  of  the  goods,  on  the  expiration 
of  such  time,  and,  if  no  time  has  been  fixed,  on  the  expira- 
tion of  a  reasonable  time.  What  is  a  reasonable  time  is  a 
question  of  fact.20 

4.  Where  there  is  a  contract  to  sell  unascertained  or 
future  goods  by  description,  and  goods  of  that  description 
and  in  a  deliverable  state  are  unconditionally  appropriated 
to  the  contract,  either  by  the  seller  with  the  assent  of  the 
buyer,  or  by  the  buyer  with  the  assent  of  the  seller,  the  prop- 
erty in  the  goods  thereupon  passes  to  the  buyer.    Such  as- 
sent may  be  expressed  or  implied,  and  may  be  given  either 
before  or  after  the  appropriation  is  made.    Where,  in  pur- 
suance of  a  contract  to  sell,  the  seller  delivers  the  goods  to 
the  buyer,  or  to  a  carrier  or  other  bailee  (whether  named  by 
the  buyer  or  not)  for  the  purpose  of  transmission  to  or  hold- 
ing for  the  buyer,  he  is  presumed  to  have  unconditionally 
appropriated  the  goods  to  the  contract,  except  in  the  cases 
provided  for  in  the  next  rule  and  hi  section  one  hundred 
and  one.    This  presumption  is  applicable,  although  by  the 
terms  of  the  contract  the  buyer  is  to  pay  the  price  before 
receiving  delivery  of  the  goods,  and  the  goods  are  marked 
with  the  words  "collect  on  delivery"  or  their  equivalents. 

5.  If  the  contract  to  sell  requires  the  seller  to  deliver  the 
goods  to  the  buyer,  or  at  a  particular  place,  or  to  pay  the 
freight  or  cost  of  transportation  to  the  buyer,  or  to  a  par- 
ticular place,  the  property  does  not  pass  until  the  goods  have 
been  delivered  to  the  buyer  or  reached  the  place  agreed  upon. 

v.  Poehlman,   191  N.  Y.  493,  84  change  the  common  law  of  New 

N.  E.  Rep.  390,  14  Ann.  Gas.  329;  York.    See  Fiss,  etc.,  Horse  Co.  ». 

Fiss,  etc.,  Horse  Co.  v.  Schwartz-  Kiernan,   108  N.  Y.  Supp.   1105; 

child,  121  N.  Y.  Supp.  292.  Russell  ».  Wolff,  19  Misc.  536,  43 

20  Rule  3,  paragraph  2,  does  not  N.  Y.  Supp.  1077. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  829 

On  the  other  hand,  if  the  express  contract  or  the  acts  of 
the  parties  manifest  a  clear  intent  to  vest  the  title  immedi- 
ately in  the  buyer,  its  passing  is  not  postponed  by  the  fact 
that  the  seller  undertook  to  make  a  delivery,21  or  procure 
necessary  authority  for  the  shipment,22  or  even  that  there 
had  been  no  actual  separation  of  the  thing  sold  from  an 
entire  mass  of  which  it  was  part.23 

On  the  question  of  the  intent  of  the  parties  in  the  acts  per- 
formed by  them,  their  declarations,  part  of  the  res  gestoe, 
are  competent,24  and  so  is  the  testimony  of  each  to  his  un- 
standing  at  the  time  of  the  transaction,  if  such  understand- 
ing does  not  conflict  with  law.25  In  the  absence  of  express 
proof  of  the  terms  of  the  contract,  evidence  is  admissible 
of  the  course  of  business  in  former  dealings  between  the  par- 
ties, of  the  same  character,  in  order  to  show  whether,  in  the 
acts  done  under  the  sale  in  question,  there  was  an  intent  to 
pass  title.26 

33.  Delivery  to  Satisfy  the  Statute  of  Frauds. 

Where  delivery  is  relied  on  for  the  purpose  of  proving  a 

"Terry  v.  Wheeler,  25  X.  Y.  24  See    Clark  v.   Rush,   19   Cal. 

520.    And  see  Stiles  v.  Rowland,  393. 

32  Id.  309;  Bradley  v.   Wheeler,  On  an  issue  of  title  to  property 

44  N.  Y.  495,  affi'g  4  Rob.  18.    But  which    had    been    contracted   for, 

see  Robert  McLane  Co.  v.  Swerne-  but  which  was  destroyed  by  fire 

mann  (Tex.  Civ.  A*),  189  S.  W.  before  delivery,  it  was  held  that 

Rep.  282.  the  conduct  of  the  seller  in  strik- 

22  Waldron  v.  Romaine,  22  N.  Y.  ing  from   its   claim   for  property 
368.  covered  by  its  insurance  the  par- 

23  Kimberly  v .  Patchin,  19  N.  Y.  ticular  property  in  question  in  the 
330;    Russell    v.    Carrington,    42  action  was  a  mere  declaration  in 
N.  Y.  118.    Thus  title  to  a  share  its  own  interest,  and  inadmissible, 
in  growing  corn  may  pass,  without  Chandler  Grain  &  Milling  Co.  v. 
an   actual   assumption   of   posses-  Shea,  213  Mass.  398, 401, 100  N.  E. 
sion    by    the    vendee.      Payne    v.  Rep.  663. 

Brownlee,  196  111.  App.  108.  2S  Prescott  v.  Locke,  51  N.  H. 

See  Chandler  Grain  &  Milling  94,  s.  c.,  12  Am.  Rep.  55.   Compare 

Co.  v.  Shea,  213  Mass.  398,  100  Foley  v.  Mason,  6  Md.  37;  Benj. 

N.  E.  Rep.  663,  as  to  passing  of  on  S.,  §  213. 

title  to  meal  which  had  not  been  26  Lelar  v.  Brown,  15  Penn.  St. 

designated  or  ascertained.  215.    So  held  in  trespass  for  seizing 


830  THE    FACT   OF   SALE 

valid  contract,  under  the  Statute  of  Frauds,  in  the  absence 
of  a  writing  or  part  payment,  stricter  proof  may  be  required. 
Mere  words  of  delivery,  though  the  thing  were  present  and 
pointed  out,  will  not  suffice.27  The  delivery  of  a  bill  of  lad- 
ing or  other  written  evidence  of  property  and  dominion  is 
not  enough,  unless  it  is  shown  or  may  be  inferred  that  both 
parties  intended  that  it  should  pass  the  property.  If  it 
was  obtained  from  the  seller  without  intent  on  his  part  to 
deliver  it,28  or  left  with  the  buyer  without  intent  on  his  part 
to  accept  the  goods  thereby,29  the  statute  is  not  satisfied. 
Delivery  by  the  seller  to  a  third  person  pursuant  to  the  buy- 
er's direction  is  enough,30  unless  the  buyer  had  a  right  of 
examination  before  acceptance,31  and  even  then  is  enough,  if 
such  third  person  was  authorized  by  him  to  accept  so  as  to 
conclude  him.32 

Evidence  of  a  delivery  to  a  general  carrier  not  selected 
by  the  buyer  is  not  enough;  although  it  might  be  if  there 
were  a  valid  contract  otherwise  proved.33  Evidence  of  de- 
livery to  a  carrier  designated  for  the  purpose  by  the  buyer 
is  enough,  if  coupled  with  evidence  that  the  buyer  had  pre- 
viously accepted  the  goods,34  or  that  the  carrier  had  express 
authority  to  accept  so  as  to  conclude  as  to  quality; 35  other- 
wise not. 

the  goods  as  the  sellers.    Compare  N.   Y.   211,  rev'g  49   Barb.   244; 

Richards    v.    Millard,    56    N.    Y.  again  68  N.  Y.  598. 

574.  "Allard  v.  Greasert,  61  N.  Y. 

"Shindler  v.  Houston,  1  N.  Y.  1. 

261.  **  Rodgers  v.  Phillips,  40  N.  Y. 

28  Brand  v.  Focht,   1  Abb.  Ct.  519.    See  also  Shepherd  v.  Butcher, 
App.  Dec.  185,  s.  c.,  5  Abb.  Pr.  etc.,  Co.,  73  So.  Rep.  (Ala.)  498. 

N.  S.  225,  affi'g  6  Robt.  426,  30  "  Cross  v.  O'Donnell,  44  N.  Y. 

How.  Pr.  313.  661. 

29  Quintard  v.  Bacon,  99  Mass.  35  Allard  v.  Greasert,  61  N.  Y.  1 ; 
185;  and  see  Rodgers  v.  Phillips,  Grimes  v.  Van  Vechten,  20  Mich. 
40  N.  Y.  519.  410.     Deliver}'  to  carrier,  if  suf- 

30  Munroe  v.  Mundy  &  Scott,  164  ficient  at  common  law,  is  enough 
Iowa,  707,  146  N.  W.  Rep.  819;  under  a  contract  made  and  to  be 
Dyer  v.  Forest,  2  Abb.  Pr.  282.  performed  in  another  State,  unless 

"  See    Stone    v.    Browning,    51      the  statute  of  frauds  of  that  State 


ACTIONS   FOK   PRICE    OF   GOODS,    ETC.  831 

Symbolical  delivery  of  bulky  articles  may  be  proved  by 
any  act  importing  a  surrender  on  one  side  and  acceptance 
on  the  other,36  such  as  delivering  a  schedule  of  them,37  or 
the  keys  of  the  repository,38  with  that  intent. 

It  is  not  essential  that  a  delivery  to  satisfy  the  statute 
be  shown  to  have  been  contemporaneous  with  the  oral  agree- 
ment. A  delivery  even  several  months  afterward  may  be 
proved.39 

Any  acts  of  the  parties  indicative  of  ownership  by  the 
buyer  may  be  given  in  evidence  by  the  seller  to  show  the 
receipt  and  acceptance  of  the  goods.  Conduct,  acts  and 
declarations  are  all  competent.40  An  attempt  on  the  part  of 
the  buyer  in  good  faith,  immediately  on  receipt  and  exami- 
nation of  the  goods,  to  communicate  to  the  seller  a  message 
declining  to  accept,  is  competent  as  a  part  of  the  res  gestce,  and 
material  as  qualifying  the  act  of  receiving  and  retaining  the 
goods.41  In  whatever  way  the  fact  is  proved,  the  evidence 
must  show  both  delivery  and  acceptance  of  the  thing  sold, 
or  some  part  of  it,  and  that  they  were  intended  by  the  par- 
ties to  effect  a  final  and  complete  change  of  property.42  If 

is  proved  as  a  fact.    Wilcox  Silver  been  sold.     Garfield  v.  Paris,  96 

Plate  Co.  v.  Green,  9  Hun,  347.  U.  S.  (6  Otto)  557;  Illinois  Glass 

36  Stanton  v.  Small,  3  Sandf.  230.  Co.  v.  Ozell  Co.,  197  111.  App.  626; 

37  Dixon  v.  Buck,  42  Barb.  70.  M.  Hommel  Wine  Co.  v.  Netter, 

38  Parker  v.  Jervis,  3  Abb.  Ct.  197  111.  App.  382. 

App.  Dec.  449;  Gray  v.  Davis,  10  41  Caulkins  v.  Hellman,  47  N.  Y. 

N.  Y.  (6  Seld.)  285.  449. 

35  McKnight  v.  Dunlop,  5  N.  Y.  «  Hewes  ».  Jordan,  39  Md.  472, 

537.  s.  c.,  17  Am.  Rep.  578. 

40  Where  the  goods  were  liquors,  A  law  library  was  owned  in 

and  labels  intended  to  be  put  on  equal  interests  by  A  and  B.  The 

the  bottles  were  sold  with  them  as  a  former  was  indebted  to  the  latter 

part  of  the  contract: — Held,  the  de-  and  an  oral  agreement  was  entered 

livery  and  acceptance  of  the  labels  into  whereby  B  purchased  A's  in- 

was  evidence  to  go  to  the  jury  terest  in  the  library  and  agreed 

of  acceptance  of  all  under  the  to  apply  the  purchase  price  upon 

statute  of  frauds,  in  connection  the  indebtedness.  After  this  agree- 

with  a  letter  from  defendants  ad-  ment  was  entered  into,  and  A  hav- 

mitting  the  existence  of  a  contract  ing  died,  B  accepted  A's  interest 

and  implying  that  the  liquors  had  and  caused  to  be  pasted  on  the 


832  THE    FACT   OF   SALE 

the  circumstances  be  such  that  the  buyer  is  not  finally  pre- 
cluded from  objecting  that  the  goods  do  not  correspond 
with  the  contract,  they  are  not  enough.43 

34.  Part  Payment  to  Satisfy  the  Statute  of  Frauds. 

Upon  the  same  principles  mere  words  of  agreement,  how- 
ever effectual  they  might  be,  independent  of  the  statute, 
to  establish  an  accord  and  satisfaction  or  payment  by  appli- 
cation of  indebtedness,  cannot  satisfy  the  statute.44  There 
must  be  an  act  of  payment  or  written  evidence.45  But  an 
actual  payment  made  for  the  purpose  of  binding  the  parties, 
though  not  made  at  the  time  of  the  oral  agreement,  is  a  re- 
newal of  it,  and  effectual.46 

35.  Various  Rules  Admitting  Documents  Otherwise  In- 

competent. 

There  are  several  principles  of  growing  importance  in  the 
present  state  of  the  law,  under  which  entries  or  memoranda 

back  of  the  books  leather  labels  the  vendor  or  vendee;  with  the 

with  his  name  printed  thereon;  he  vendor  if  a  delivery  of  part  of  the 

took  possession  and  assumed  owner-  goods  and  their  acceptance  by  the 

ship  of  the  books  and  gave  A  credit  vendee  is  the  ground  for  validating 

for  the  purchase  price  on  the  in-  the  contract;  with  the  vendee  if 

debtedness: — Held,  that  there  was  part  payment  is  relied  upon.     In 

no  delivery  and  acceptance  sum-  either  case  the  participation  and 

cient  to  satisfy  the  statute.    Young  assent  of  both  parties  to  it  is  neces- 

v.  Ingalsbe,  208  N.  Y.  503,   102  sary." 

N.  E.  Rep.  590.    The  court  said:  «  Id. 

"...     The  statute  renders  es-  44  Mattice  v.  Allen,  3  Abb.  Ct. 

sential  to  the  proof  of  a  valid  con-  App.  Dec.  248,  rev'g  33  Barb.  543. 

tract  of  sale,  not  onljr  evidence  of  See  Young  v.  Ingalsbe,  208  N.  Y. 

the  verbal  contract,  but  also  evi-  503,  102  N.  E.  Rep.  590. 

dence  of  a  receipt  and  acceptance  45  Brabin  v.  Hyde,  32  N.  Y.  519, 

by  the  vendee  of  a  part  of  the  goods,  rev'g  30  Barb.  265. 

or  of  a  payment  at  the  time  the  4«  Bissell  v .  Balcom,  39  N.   Y. 

oral  agreement  was  made.     The  275,  rev'g  40  Barb.   98;  Allis  v. 

contract  must  be  authenticated  by  Read,  45  N.  Y.  142. 

a  prescribed  act  of  the  parties  in  A  note  given  by  the  purchaser 

pursuance  and  part  performance  of  does      not      constitute      payment 

it.     The  act  may  originate  with  within  the  statute  but  the  accept- 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  833 

which  are  not  in  themselves  competent,  are  admissible  as 
auxiliary  to  oral  testimony. 

36.  Contemporaneous  Memoranda. 

When  a  witness  has  testified  that  he  made  a  memorandum 
of  a  transaction  had  in  his  presence,  the  memorandum  may 
be  read  in  evidence,47  if  it  was  read  to  or  by  the  parties  and 
assented  to  as  embodying  their  agreement,  or  certain  terms 
of  it,  or  if  the  making  of  it  was  part  of  the  res  gestce  of  an 
act  of  the  witness  already  properly  in  evidence.48  But  if 
neither,  the  mere  fact  that  it  was  a  contemporaneous  memo- 
randum does  not  render  it  competent.49 

37.  Memoranda  Refreshing  Memory. 

A  witness  whose  recollection  is  not  sufficient  to  enable 
him  to  answer  a  question  ^  may,  notwithstanding  he  is 
under  examination  at  the  time,  refresh  his  memory  by  re- 
ferring to  a  writing  or  other  record  or  document 51  as  a 
memorandum,  hi  the  following  cases : 

1.  If  the  memorandum  was  made  by  himself  (or  by  an- 
other person  at  his  dictation),52  at  the  tune  of  the  transac- 
ance  of  the  note  of  a  third  person  49  Flood  v.  Mitchell,  68  N.  Y. 
is  sufficient,  if  given  in  satisfaction  507;  Moore  v.  Meacham,  10  N.  Y. 
of  the  debt.  Combs  v.  Bateman,  207. 
10  Barb.  573.  50  The  use  of  memoranda  to 

47  Lathrop  v.  Bramhall,  64  N.  Y.      refresh    memory    is    confined    to 
372.  cases  where  the  witness'  memory 

48  See  Chapter  IX,  paragraph  49      is  at  fault  without  it.     Young  v. 
of  this  vol.  Catlett,  6  Duer,  437;  Sackett  v. 

Memoranda  made  by  the  wit-  Spencer,  29  Barb.  180.  He  should 
ness,  plaintiff's  agent,  subsequent  be  allowed  time.  Key  v.  Lynn,  4 
to  the  alleged  transaction,  and  not  Litt.  338,  340. 
in  the  presence  of  the  defendant,  51  Any  memorandum  (Guy  v. 
may  be  used  to  refresh  the  recol-  Mead,  22  N.  Y.  462),  even  such  as 
lection  of  the  witness  (subject  to  his  marks  on  a  board.  See  Marcly 
the  right  of  the  other  party  to  v.  Shults,  29  N.  Y.  351,  where, 
cross-examine),  but  cannot  be  used  however,  the  memorandum  offered 
for  the  purpose  of  establishing  was  excluded  on  other  grounds, 
the  facts  therein  contained.  Bin-  52  Filkins  v.  Baker,  6  Lans.  518; 
ner- Wells  Co.  v.  J.  P.  Smith  Shoe  or  from  his  memoranda,  and  sub- 
Co.,  174  111.  App.  261.  ject  to  his  immediate  supervision; 


,834 


THE    FACT   OF   SALE 


tion  53  concerning  which  he  is  questioned,  or  so  soon  after- 
ward that  the  judge  considers  it  likely  that  the  transaction 
was  at  that  time  fresh  in  his  memory; 54  or  if  made  by  any 
other  person,  and  read  by  the  witness  within  the  same 
limits  as  to  time,  and  if,  when  he  read  it,  he  knew  it  to  be 
correct.53  If  the  witness  testifies  that  he  knew  the  writing 
to  be  correct  at  the  time  he  made  or  read  it,56  the  competency 
of  testimony  made  by  its  aid  is  not  impaired  by  the  fact  that 
he  relies  not  on  his  memory  of  the  fact  itself,  but  on  his  con- 
fidence in  the  accuracy  of  the  memorandum.57 

A  memorandum  which  is  proper  under  this  rule,  and  is 
used  accordingly,  becomes  competent,  and  may  be  read  as 
evidence  of  the  facts  testified  to  from  it,58  if  it  be  the  original 


Krom  v.  Levy,  1  Hun,  173.  The 
witness  may  use  the  memoran- 
dum to  refresh  his  recollection, 
though  not  made  by  himself,  if 
he  can  identify  it  upon  inspection 
and  testify  that  he  recollects  it  as 
one  made  at  the  time  of  the  trans- 
action. Hazer  v.  Streich,  92  Wis. 
505, 509,  66  N.  W.  Rep.  720. 

53  When  it  does  not  appear  that 
such  a  memorandum  was  made 
contemporaneously  with  the  hap- 
pening of  the  events  which  it  de- 
scribes, it  should  not  be  submitted 
to  the  jury.  Bates  v.  Preble,  151 
U.  S.  149.  The  recollection  of  a 
witness  concerning  a  fact  in  issue 
cannot  be  corroborated  by  the 
contents  of  a  memorandum  made 
by  himself,  long  after  the  circum- 
stances, showing  his  recollection 
at  a  former  date.  Jones  v.  State, 
54  Ohio  St.  1,  42  N.  E.  Rep.  699. 

64  Steph.  Dig.  Ev.  Art.  136. 

"Id. 

56  Lewis  v.  Ingersoll,  3  Abb.  Ct. 
App.  Dec.  55;  Van  Buren  v.  Cock- 
burn,  14  Barb.  181. 


"Cole  v.  Jessup,  10  N.  Y.  96, 
9  Barb.  395,  s.  c.,  10  How.  Pr.  515; 
Filkins  v.  Baker,  6  Lans.  518. 

58  Halsey  v.  Sinsebaugh,  15  N.  Y. 
485.  The  Supreme  Court  of  the 
United  States  is  not  committed 
to  the  general  doctrine  that  written 
memoranda  of  subjects  and  events, 
pertinent  to  the  issues  in  a  case, 
made  contemporaneously  with 
their  taking  place,  and  supported 
by  the  oath  of  the  person  making 
them,  are  admissible  in  evidence 
for  any  other  purpose  than  to 
refresh  the  memory  of  that  person 
as  a  witness.  Bates  v.  Preble,  151 
U.  S.  149.  If  a  memorandum, 
made  in  a  book  containing  other 
matter  relating  to  the  issues  which 
is  not  proper  for  submission  to 
the  jury,  be  admitted  in  evidence, 
the  leaves  containing  the  inadmis- 
sible matter  should  not  go  before 
the  jury.  Bates  r.  Preble,  151  U.  S. 
149.  In  such  a  case  it  is  not  enough 
to  direct  the  jury  to  take  no  notice 
of  the  objectionable  matter,  but 
the  leaves  containing  it  should 


ACTIONS    FOR    PRICE    OF    GOODS,    ETC. 


835 


entry,  not  a  copy,59  and  if  the  witness'  memory,  after  being 
refreshed,  does  not  enable  him  to  testify  to  the  facts  without 
the  memorandum.60  It  is  not  error,  however,  to  allow  a 
copy  made  by  the  witness  from  his  original  entry,  or  re- 
produced by  him  in  substance,  from  memory,  after  the  loss 
of  the  original,  to  be  read  to  the  jury,  not  as  evidence  of  the 
facts  contained  in  it,  as  in  case  of  an  original  entry,  but  as  a 
statement  in  detail  of  what  the  witness  has  testified  to 
directly.61 

Hence  in  an  action  for  goods  sold,  a  witness  who  testifies 
that  he  made  correct  original  entries  of  the  transaction,  and 
he  has  forgotten  the  transaction,  may  be  shown  his  original 
entries,  and  read  them  as  evidence.62  The  correctness  of 
the  entries  may  be  shown  either  by  his  testimony  of  his  own 
knowledge,  or  his  testimony  that  he  entered  correctly  what 
others  told  him,  if  such  others  are  produced  and  testify  that 
they  gave  him,  correctly,  facts  within  their  own  knowl- 
edge.63 


be  sealed  up  and  protected  from 
inspection  by  the  jury  before  the 
book  goes  into  the  conference 
room.  Id. 

»  Marcly  ».  Smalts,  29  N.  Y.  348; 
and  see  49  N.  Y.  316. 

60  Id.   The  memorandum  is  inad- 
missible if  the  witness  is  able  to 
recall  the  facts  without  the  aid  of 
it.      The     primary     common-law 
proof  is  then  furnished,  and  the 
necessity  for  evidence  of  the  lesser 
degree  does  not  arise.    Xat.  Ulster 
Co.  Bank  v.  Madden,  114  N.  Y. 
280,  284,  285,  21  N.  E.  Rep.  408; 
Hicks  v.  British  America  Ass.  Co., 
13  App.  Div.  (N.  Y.)  444,  448. 

61  McCormick    v.    Pennsylvania 
Central  R.  R.  Co.,  49  N.  Y.  316. 

62  Philbin  v.  Patrick,  3  Abb.  Ct. 
App.  Dec.  605,  s.  P.,  9  Hun,  347, 
and  cases  cited.     It  is  not  neces- 


sary that  the  memorandum  be  a 
formal  account.  Any  record,  how- 
ever rude,  made  to  mark  the  event 
or  as  an  aid  to  memory  may  serve. 
See  Marcly  v.  Shults  (above). 

63  Payne  v.  Hodge,  7  Hun,  612. 
It  has  been  recently  held  in  Shear 
v.  Van  Dyke,  10  Hun,  528,  in  ex- 
tension of  this  rule,  that,  a  witness 
having  testified  that  a  quantity, 
which  he  had  now  forgotten,  he 
had,  at  the  time  of  delivery,  re- 
ported correctly  to  another,  the 
other  might  be  called  and  testify 
as  to  what  was  the  quantity  thus  re- 
ported; that  is  to  say,  a  human 
memory  may  serve  as  a  book  of 
original  entries.  So,  where  a 
temporary  memorandum,  made  by 
a  witness  who  had  since  forgotten 
what  was  written,  had  been  de- 
stroyed by  another  witness  who  in 


836  THE   FACT   OF   SALE 

2.  Original  memoranda   made   contemporaneously  with 
the  fact,64 — usually  such  as  accounts,  bills  of  parcels,  and 
the  like, — although  not  shown  to  have  been  made  by  the 
witness,65  and  copies  or  abstracts  made  by  him  from  his  in- 
spection of  such  memoranda,66  may  be  referred  to  by  him 
while  on  the  stand,  if  his  memory,  refreshed  by  them,  en- 
ables him  to  testify  from  recollection  of  the  original  facts, 
independent  of  his  confidence  in  the  accuracy  of  the  mem- 
oranda.67   He  is  not  in  such  case  to  read  from  the  mem- 
orandum, nor  does  the  memorandum  become  admissible  in 
corroboration.68 

3.  In  cases  requiring  many  details  of  date,  quantity,  etc., 
it  is  common  practice  to  allow  a  witness  to  consult,  but  not 
to  read  from,  memoranda  made  by  him  of  facts  within  his 
own  knowledge,  to  which  he   cannot  speak  in  sufficient 
detail  without  such  aid,   although  the   memoranda  were 
made  in  preparation  for  trial.    But  such  memoranda,  if 
not    within    the    preceding   rules,   are   not   admissible   in 
evidence,69  unless  they  are  of  a  character — such  as  maps, 
diagrams,  or  tabular  statements — reasonably  necessary  to 
render  the  testimony  intelligible,  and  are  proven  to  be 
correct. 

Any  thing  referred  to  by  a  witness  to  refresh  memory 
must,  if  required,  be  shown  to  the  adverse  party;  and  he 
may  cross-examine  the  witness  thereupon,70  but  is  not  bound 
to  put  the  paper  hi  evidence.71 

the  course  of  duty  transcribed  it  Sandf.    221.    And    see    Sturm    v. 

in  more  permanent  form,  the  latter  Atlantic  Ins.  Co.  (above), 

was  permitted  to  produce  his  copy  c7  Wilde  v.  Hexter,  50  Barb.  448. 

and  testify  to  what  he  transcribed.  B8  Russell  v.  Hudson  River  R.  R. 

Adams  v.  People,  3  Hun,  654.  Co.,  17  N.  Y.  134.    Compare  note 

64  This    contemporaneous    char-  61,  above. 

acter  is  not  always  strictly  to  be  69  Stuart    v.    Binuse,    7    Bosw. 

required.  195. 

ss  Sturm  v.  Atlantic  Ins.  Co.,  38  70Peck   v.   Lake,   3   Lans.    136; 

Super.  Ct.  (J.  &  S.)  286,  296,  318;  Steph.  Dig.  Art.  137;  Tibbetts  K. 

Huff  v.  Bennett,  6  N.  Y.  337.  Sternberg,  66  Barb.  201. 

MHowland  v.  Sheriff  Willetts,  5  71  Peck  v.  Lake  (above). 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


837 


38.  Memoranda  Made  by  a  Third  Person  in  the  Usual 
Course  of  Business. 

An  entry  or  memorandum,  whether  in  a  book  or  in  any 
other  form,72  made  in  the  usual  course  of  business,73  and  at 
or  about  the  time  of  the  transaction,  by  a  person  not  a  party 
to  the  action,  who  is  shown  to  have  had  means  of  personal 
knowledge 74  of  the  fact  recorded,  is  competent  evidence  of 
such  fact: 

1.  If  the  person  who  made  it  is  produced,  and  verifies  the 
handwriting  as  his  own,75  and  testifies  that  it  was  so  made, 


72  Livingston  v.  Arnoux,  56  N.  Y. 
518. 

Not  a  copy.  James  v.  Wharton, 
3  McLean,  492. 

73  It  must  appear  to  have  been 
made  in  the  regular  course  of  busi- 
ness, under  such  circumstances  as 
to  import  trustworthiness;  and  it  is 
for  the  judge  to  say,  in  the  first 
instance,    whether    the    record    is 
of  such  a  character;  and  his  de- 
cision will  not  be  interfered  with 
unless    clearly    wrong.      Riley    v. 
Boehm,  167  Mass.  183,  45  N.  E. 
Rep.  84. 

Entries  made  by  a  receiver  a 
year  after  the  transaction  in  ques- 
tion are  inadmissible.  Starke  r. 
Stewart,  33  N.  D.  359,  157  N.  W. 
Rep.  302. 

74  The  entries  are  not  admissible 
under  this  rule  if  made  on  informa- 
tion received  from  a  third  person, 
although    communicated    by    him 
in  the  course  of  duty;  Thomas  v. 
Price,  30  Md.  483;  White  r.  Wilkin- 
son, 13  La.  Ann.  359;  even  though 
the   person  who  made  the  entry 
testify    that    his    informant    (not 
shown  to   be  deceased)   saw  and 
corrected   it.      In    such    case    the 


latter  should  be  produced.  See 
Gould  0.  Conway,  59  Barb.  355; 
Chenango  Bridge  Co.  v.  Lewis,  63 
Id.  111.  The  informant  not  hav- 
ing adopted  the  entry  as  his  own, 
the  mere  fact  that  he  is  dead  does 
not  admit  the  entry  made  by  the 
witness  on  his  information.  Brain 
v.  Price,  11  Mees  &  W.  773.  As  to 
the  effect  of  ignorance  of  some  of 
the  entries,  see  Burke  v.  Wolfe, 
38  Super.  Ct.  (J.  &  S.)  263. 

75  Gilchrist  v.  Brooklyn  Grocers ' 
Assoc.,  59  N.  Y.  499. 

In  an  action  to  recover  a  balance 
due  under  a  contract  requiring 
payment  on  proper  certificates  of 
weight  from  a  public  weigher,  the 
plaintiff  produced  undated  and  un- 
identified scraps  of  paper  bearing 
figures  in  lead  pencil  and  testified 
that  they  were  given  to  him  "by 
the  man  from  the  scales."  There 
was  no  evidence  that  this  man  was 
a  public  weigher  and  his  identity 
was  not  established.  The  court 
held  that  the  papers  were  inadmis- 
sible as  memoranda.  Goldfarb 
T.  Goldman,  141  X.  Y.  Supp. 
479. 


838 


THE    FACT    OF    SALE 


and  correct  when  made,  although  he  may  have  no  present 
recollection  whatever  of  the  transaction;76  or, 

2.  If  the  person  who  made  it  is  dead,  and  his  signature 
or  handwriting  is  proved,  and  he  does  not  appear  to  have 
had  any  interest  to  falsify.  If  living,  though  he  be  without 
the  jurisdiction,  he  must  be  produced." 

It  is  not  necessary  that  the  person  should  have  been  under 
an  absolute  duty  to  make  the  entry;  it  is  enough  if  it  was 
the  natural  concomitant  of  the  transaction  to  which  it  re- 
lates, and  usually  accompanies  it.78 

76  Price  v.  Torrington,  Salk.  285,      by  the  clerk  or  servant  who  made 


s.  c.,  1  Smith's  L.  Cas.  390;  Merrill 
v.  Ithaca,  &c.  R.  R.  Co.,  16  Wend. 
586.  The  rule  applies,  although 
the  entries  were  only  of  each  order 
in  gross,  without  stating  the  items. 
Gilbert  v.  Sage,  57  X.  Y.  639,  affi'g 
5  Lans.  287.  But  see  Binner  Wells 
Co.  v.  J.  P.  Smith  Shoe  Co.,  174  111. 
App.  261. 

77  Ocean  Nat.  Bank  v.  Carll,  55 
X.  Y.  440;  again,  9  Hun,  239,  and 
cases  cited.  In  some  States  per- 
manent insanity,  in  others  per- 
manent absence  from  the  State, 
is  equivalent  to  death  for  this  pur- 
pose. For  instances,  see  1  Smith's 
L.  Cas.  139;  note  to  Price  v.  Tor- 
rington. A  ledger  may  be  admitted 
in  evidence,  to  prove  an  account, 
upon  proof  of  the  handwriting  of 
the  bookkeeper,  who  is  shown  to 
be  beyond  the  jurisdiction  of  the 
court,  and  place  of  residence  un- 
known, when  original  books  of 
entry  are  proved  to  have  been 
destroyed.  Rigby  v.  Logan,  45 
S.  C.  651,  24  S.  E.  Rep.  56.  At 
common  law  it  was  necessary,  in 
order  to  make  books  of  account 
admissible  in  evidence,  that  the 
entries  therein  should  be  proved 


them,  if  he  was  alive  and  could 
be  produced,  and  that  they  should 
have  been  made  by  a  person  whose 
duty  it  was  to  make  them,  and  that 
they  were  made  in  the  ordinary 
course  of  business,  and  contempo- 
raneously with  the  delivery  of  the 
goods,  so  as  to  form  a  part  of  the 
res  geslce.  The  Illinois  statute  has 
simply  enlarged  this  rule  without 
repealing  it,  by  permitting  the 
owner  who  keeps  the  books  to 
testify  to  the  original  entries  made 
therein.  House  v.  Beak,  141  111. 
290,  33  Am.  St.  Rep.  307,  30  X.  E. 
Rep.  1065. 

78  Fisher  v.  Mayor,  &c.  of  N.  Y. 
67  X.  Y.  77;  Morrow  v.  Ostrander, 
13  Hun,  219.  Entries  made  by  a 
jailer  of  a  public  jail  in  Alabama, 
in  the  record  book  kept  for  that 
purpose,  of  the  dates  of  the  receiv- 
ing and  discharging  of  prisoners 
kept  therein,  made  by  him  in  the 
discharge  of  his  public  duty  as 
such  officer,  are  admissible  in  evi- 
dence in  a  criminal  prosecution  in 
the  Federal  courts,  although  no 
statute  of  the  State  requires  them. 
White  r.  United  States,  164  U.  S. 
100.  It  has  been  held  that  in  a 


ACTIONS   FOR    PRICE    OF    GOODS,    ETC. 


839 


39.  Shop  Books  and  Other  Accounts  of  a  Party  Offered  hi 
His  Own  Favor. 

The  statutes  allowing  parties  to  testify  have  revolutionized 
the  practice,  by  making  the  party  the  witness  and  allowing 
him  commonly  to  use  his  book  as  a  memorandum  to  refresh 
his  memory; 79  but  the  rule  admitting  his  account  as  primary 
evidence,  with  certain  preliminary  proof,  is  still  in  force;80 


conflict  of  evidence  as  to  whether 
the  witness  performed  an  alleged 
act,  his  book,  testified  to  by  him 
to  be  a  complete  record  of  all  his 
transactions  of  the  nature  of  that 
alleged,  is  admissible,  for  the  pur- 
pose of  inferring,  from  the  absence 
of  an  entry  of  the  alleged  transac- 
tion, that  it  did  not  occur.  Morrow 
v.  Ostrander,  13  Hun,  219. 

Alterations,  etc.,  seriously  impair 
the  credit  of  the  entry.  Gilchrist 
v.  Brooklyn  Grocers'  Assoc.,  59 
N.  Y.  499,  but  do  not  necessarily 
render  it  incompetent.  Adams  v. 
Couilliard,  102  Mass.  167. 

79  Henry   v.   Martin,    1    Weekly 
Cas.   (Pa.)   277;  Barnet  v.  Stein- 
bach,  Id.  335. 

80  Stroud  v.  Tilton,  4  Abb.  Ct. 
App.  Dec.  324;  Burke  v.  Wolfe,  38 
Super.  Ct.  (J.  &  S.)  263.    "Since  a 
party  may  testify  in  his  own  behalf 
it  must  be  considered  that  he,  as 
well  as  his   clerk  or  bookkeeper, 
may  refresh  his  memory  from  en- 
tries made  by  him  or  under  his  eye, 
and  then  testify  as  to  the  facts 
Avith  his  memory  thus  refreshed. 
Now  in  cases  of  an  account  com- 
posed   of    many    items,    all    this 
means  nothing  more  than  reading 
the   book  in   evidence.     This   we 
all  know  from  daily  experience  in 
the  trial  courts.     It  is  out  of  all 


reason  to  say  that  a  merchant  or 
his  clerks  can  recall  each  item  of 
the  account,  and  a  fair-minded 
witness  will  generally  decline  the 
attempt.  Account-books  are  ad- 
mitted in  evidence  for  the  person 
by  whom  they  are  kept  when  the 
entries  are  made  at  the  time,  or 
nearly  so,  of  doing  the  principal 
fact,  because  entries  made  under 
such  circumstances  constitute  a 
part  of  the  res  gestai.  An  entry 
thus  made  is  more  than  a  mere 
declaration  of  the  party.  It  is  a 
verbal  act  following  the  principal 
fact  in  the  orderly  conduct  of  busi- 
ness. Such  is  certainly  the  custom 
and  course  of  business  at  the  pres- 
ent day.  We,  therefore,  conclude 
that  an  account-book  of  original 
entries,  fair  on  its  face,  and  shown 
to  have  been  kept  in  its  usual  course 
of  business,  is  evidence,  even  in 
favor  of  the  party  by  whom  they 
are  kept."  Anchor  Milling  Co. 
v.  Walsh,  108  Mo.  277,  32  Am.  St. 
Rep.  600, 18  S.  W.  Rep.  904.  Mem- 
oranda purporting  to  show  items 
of  shortage  in  goods  purchased  are 
inadmissible  in  evidence  in  the 
absence  of  testimony  to  prove  their 
correctness.  Pabst  Brewing  Co.  v. 
Lueders,  107  Mich.  41,  64  N.  W. 
Rep.  872.  One  party  to  a  disputed 
contract  cannot  prove  it  by  show- 


840 


THE    FACT   OF   SALE 


and  it  is  convenient  to  rely  upon  it  in  some  cases  where  the 
right  to  read  the  account,  as  having  refreshed  the  witness's 
memory,  may  be  doubtful.81  It  is  not  essential  under  this 
rule  to  produce  the  party  himself  as  a  witness,  even  since 
the  disqualification  of  parties  has  been  removed.82 
ing  as  an  independent  item  of  evi-  to  write,  in  which  only  entries 


dence  that,  for  the  consideration, 
he  entered  a  charge  against  him- 
self in  his  own  book.  Fifth  Mutual 
Building  Society  of  Manayunk  v. 
Holt,  184  Pa.  St.  572,  39  Atl.  Rep. 
293.  Where  the  clerk  who  makes 
original  entries  in  books  of  ac- 
count has  no  knowledge  of  their 
correctness,  but  makes  them  as  the 
items  are  furnished  by  another,  it 
is  essential  that  the  party  furnish- 
ing the  items  should  testify  to  their 
correctness,  or  that  satisfactory 
proof  thereof  from  other  sources 
should  be  produced  before  the 
books  are  admissible  in  evidence. 
House  v.  Beak,  141  111.  290,  33 
Am.  St.  Rep.  307,  30  N.  E.  Rep. 
1065.  Resort  may  be  had  to 
schedules  containing  abstracts  of 
voluminous  books  or  documents 
which  have  been  put  in  evidence, 
where  those  schedules  are  verified 
by  the  witness  who  made  them, 
and  their  assistance  will  render  the 
original  documentary  proofs  more 
readily  comprehensible  by  judge, 
jury  or  referee.  Boston  &  Wor- 
cester R.  Corporation  v.  Dana,  1 
Gray,  83,  104;  Jordan  v.  Osgood, 
109  Mass.  457,  464;  Von  Sachs  v. 
Kretz,  72  N.  Y.  548;  Van  Name  r. 
Van  Name,  38  App.  Div.  451,  456; 
Masonic  Mut.  Ben.  Soc.  v.  Lack- 
land, 97  Mo.  137,  10  Am.  St. 
Rep.  298,  10  S.  W.  Rep.  895.  Ac- 
count book,  kept  by  one  unable 


are  straight  marks  to  indicate  the 
number  of  loads  of  sand  delivered, 
is  admissible  in  evidence,  when  sup- 
ported by  oath;  and  at  all  events, 
such  person  has  the  right  to  use  the 
book  as  a  memorandum  to  refresh 
and  aid  his  memory.  Miller  v. 
Shay,  145  Mass.  162,  1  Am.  St. 
Rep.  449,  13  N.  E.  Rep.  468. 

81  The  value  and  importance  of 
the  party's  account  are  asserted  in 
Butler  v.  Cornwall  Iron  Co.,  22 
Com.  360,  and  denied  in  Larue  v. 
Rowland,  7  Barb.  107,  and  Tom- 
linson  v.  Borst,  30  Id.  46. 

82  Tomlinson  v.  Borst,  30  N.  Y. 
42.     This  is  the  New  York  rule. 
In   those  jurisdictions  where  the 
suppletory  oath  of  the  party  him- 
self is  required,  the  general  rule 
is  that  if  part  of  the  transaction 
was  done  by  one  partner,  and  part 
by  another,  as  where  one  delivered 
the  goods  and  another  made  the 
entries,   each   may  testify  to  his 
own  share  in  the  transaction.     If 
the  person  who  kept  the  books  is 
dead,  the  suppletory  oath  may  be 
made  by  the  executor  or  adminis- 
trator speaking  to  the  best  of  his 
knowledge  and  belief;  and  testify- 
ing also  that  the  books  came  to  his 
hands  as  the  genuine  and  only  ac- 
count books  of  the  deceased;  but 
in  such  case  there  must  also  be 
proof  of  the  handwriting  of  the  de- 
ceased.    If  the  person  who  kept 


ACTIONS    FOR    PRICE    OF   GOODS,    ETC. 


841 


The  general  rule  is  that  in  actions  for  goods  sold  (and 
some  others),  not  founded  on  special  contract,83"91  the  party's 
books  of  account  are  admissible  in  evidence  for  the  consider- 
ation of  the  jury,  hi  his  own  favor,  upon  due  preliminary 
proof:  1.  That  they  are  his  books  of  account  kept  in  the 
regular  course  of  business;  2.  That  there  was  a  course  of 
dealing  between  the  parties;  3.  That  some  article  or  service 
charged  was  actually  furnished;  4.  That  the  party  had  no 
clerk  or  bookkeeper;  5.  That  he  kept  fair  and  honest  ac- 
counts.92 


the  books  is  insane,  the  question  of 
insanity  being  one  for  the  judge, 
the  books  are  admissible  on  the 
like  suppletory  oath  of  the  com- 
mittee or  guardian,  with  proof 
also  of  handwriting. 

83-«i  Merrill  v.  Ithaca,  &c.  R.  R. 
Co.,  16  Wend.  586.  Conira,  Cum- 
mings  v.  Nichols,  13  X.  H.  420. 
The  rule  does  not  apply  to  books  or 
entries  relating  to  cash  items  or 
dealings  between  the  parties.  Smith 
v.  Rentz,  131  N.  Y.  169,  30  N.  E. 
Rep.  54.  Bank  books  of  accounts 
and  original  entries  shown  to  have 
been  accurately  kept  and  written 
up  each  day  are  admissible  in  evi- 
dence in  favor  of  the  bank.  Robin- 
son v.  Smith,  111  Mo.  205,  33 
Am.  St.  Rep.  510,  20  S.  W.  Rep.  29. 

92  Vosburgh  v.  Thayer,  12  Johns. 
461;  Stroud  v.  Tilton,  4  Abb.  Ct. 
App.  Dec.  324;  Knight  v.  Cuming- 
ton,  6  Hun,  100;  Foster  v.  Coleman, 
1  E.  D.  Smith,  85;  and  see  further, 
1  Smith's  L.  Gas.  142,  1  Greenl. 
Ev.,  §118,  1  Whart.  Ev.,  §§678, 
&c.  700.  The  books  must  show 
that  they  are  kept  in  the  regular 
routine  of  business.  In  re  Fulton's 
Estate,  178  Pa.  St.  78,  87,  88,  35 
Atl.  Rep.  880.  When  a  party  to  an 


account  keeps  his  own  book  of 
original  entries,  it  is  admissible 
to  sustain  an  account  therein  com- 
posed of  many  items  upon  proof 
that  some  of  the  articles  were  de- 
livered at  or  about  the  time  the 
entries  purported  to  have  been 
made;  that  such  entries  were  in  the 
handwriting  of  the  party  producing 
the  book;  that  he  kept  no  clerk  at 
the  time;  and  that  his  customers 
had  settled  by  the  book  and  found 
it  to  be  fair  and  correct.  House  v. 
Beak,  141  111.  290,  33  Am.  St.  Rep. 
307,  30  N.  E.  Rep.  1065. 

An  account  from  a  loose-leaf 
ledger  may  be  admitted  in  evi- 
dence, where  it  is  shown  that  the 
entries  appearing  in  the  account 
were  made  contemporaneously 
with  the  transactions  which  they 
purported  to  record  in  the  usual 
course  of  business  and  that  the 
account  was  accurately  kept,  so 
as  to  make  the  same  admissible 
under  the  doctrine  relating  to  the 
admissibility  of  books  of  account 
generally.  McDonough  v.  Com- 
mercial State  Bank  (Ala.  A.),  73 
S.  754;  Gentry  v.  S.  A.  Rider 
Jewelry  Co.  (Mo.  A.),  194  S.  W. 
1057.  * 


842 


THE   FACT   OF   SALE 


In  more  detail  observe:  1.  The  record  must  be  shown 
to  have  been  the  party's  account,  kept  in  the  regular  course 
of  business.  Formal  bookkeeping  is  not  important.  The 
record  derives  whatever  respect  it  receives,  from  the  fact 
that  it  is  the  personal  record  of  the  party,  kept  according 
to  his  usage  and  degree  of  intelligence,  for  the  purpose  of 
preserving  the  memory  of  moneys  due  him  for  goods  or 
labor.93  The  account  is  not  to  be  excluded  because  kept 


In  such  a  case  the  original  leaf 
of  the  ledger  may  be  admitted. 
Shepherd  v.  Butcher  Tool,  etc., 
Co.  (Ala.),  73  S.  498. 

A  typical  statute  authorizes 
the  introduction  in  evidence  of  the 
books  of  account  of  any  merchant, 
shop-keeper,  physician,  blacksmith 
or  other  person  doing-  a  regular 
business  and  keeping  daily  entries 
thereof  as  proof  of  such  accounts 
upon  these  conditions:  (1)  That 
he  keep  no  clerk,  or  else  that  the 
clerk  is  dead  or  is  otherwise  in- 
accessible, or  that  from  any  cause 
the  clerk  is  disqualified  from  testi- 
fying; (2)  that  proof  is  made  (the 
parties'  oath  being  sufficient)  that 
the  book  tendered  is  book  of  orig- 
inal entries;  and  (3)  that  there  is 
investigation  by  the  court  to  see  if 
the  books  are  free  from  any  sus- 
picion of  fraud.  Shepherd  v. 
Butcher  Tool,  etc.,  Co.  (Ala.), 
73  S.  498. 

A  memorandum  about  ten 
inches  long,  eight  inches  wide  and 
three-eighths  of  an  inch  thick, 
from  which  many  pages  had  been 
torn,  and  which  contains  memo- 
randa of  some  kinds  and  other  mat- 
ters not  in  regular  chronological 
order,  is  properly  excluded,  al- 
though the  witness  testifies  that 


it  was  an  account  book  of  his  own, 
that  all  the  daily  transactions  were 
entered  in  this  book,  and  that  this 
was  the  only  account  book  kept 
by  him,  where  the  book  itself  did 
not  indicate  that  it  was  a  book  in 
which  was  regularly  kept  accounts 
by  witness,  or  that  it  was  kept  in 
the  regular  course  of  his  business. 
Wilcox  v.  Downing,  88  Conn.  368, 
91  A.  262. 

So  where  memorandum  entries 
in  pencil  are  made  in  small  memo- 
randum books  at  the  time  of  sales 
of  goods,  and  each  item  is  shortly 
thereafter  transcribed  upon  what 
is  called  the  ledger,  there  being  in 
no  cases  a  delay  of  more  than  a 
week  in  transcribing  entries,  and 
the  only  purpose  of  the  so-called 
ledger  being  to  separate  into  dis- 
tinct accounts  purchases  made  by 
different  persons,  such  ledger  is 
admissible  under  a  statute  relat- 
ing to  the  admissibility  of  books  of 
original  entry.  Harper  v.  Ham- 
mond, 13  Ga.  A.  238,  79  S.  E.  44. 

93  Thus,  a  notched  stick  kept  for 
this  purpose  was  admitted  in 
Rowland  v.  Burton,  2  Harr.  (Del.) 
288;  scraps  of  paper  in  Smith  r. 
Smith,  4  Id.  632,  533;  Taylor  v. 
Tucker,  1  Ga.  231.  But  these  are 
exceptional  cases.  See  Hall  e. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


843 


in  ledger  form,  so  that  the  charges  against  defendant  are 
on  a  separate  page  from  those  against  others;94  although 
entries  scattered  through  an  account  in  the  journal  or  day- 
book form  are  more  cogent  evidence.  But  if  shown  not  to 
be  the  book  of  original  entries,  it  is  not  competent  without 
producing  or  accounting  for  those  entries.9'  If  it  appear 
either  from  the  books  themselves,  or  extrinsic  evidence,96 
that  they  are  a  part  of  a  system  of  books  involving  others 
which  may  be  necessary  to  a  complete  view  of  the  state 
of  accounts,97  the  others  must  be  produced  or  accounted 
for.98  Thus  where  the  ledger  is  relied  on,  a  day-book  shown 
to  have  been  kept  must  be  produced.99  But  the  fact  that 
according  to  the  merchants'  custom,  the  charges  were  made 
in  the  first  instance  upon  slips  of  paper  and  the  same  day 
transferred  to  a  day-book,  does  not  take  away  from  the  day- 
book, its  character  as  a  book  of  original  entry.1  The  charge 

Glidden,   39    Me.    445;    Jones    v.      duced,  to  others  not  produced,  was 
Jones,  21  N.  H.  219.   On  the  other 
hand,  a  pocket  memorandum  book 
has    been    excluded.      Richardson 
v.  Emery,  23  N.  H.  (3  Fost)  220. 

94  Shepherd  v.  Butcher,  etc.,  Co., 
73  So.  Rep.  (Ala.)  498;  Faxon  v. 
Hollis,  13  Mass.  428.  A  tabular 
form  may  be  admissible.  Mathes 
v.  Robinson,  8  Mete.  -269.  And 
alterations  are  suspicious.  Lloyd 
v.  Lloyd,  1  Redf.  399. 

96  Vilmar  v.  Schall,  35  Super.  Ct. 
(J.  &  S.)  67. 

96  Pendleton  v.  Weed,  17  N.  Y. 
72.    See  also  Schenck  v.  Wilson,  2 
Hilt,  92. 

97  As,  for  instance,  where  a  jour- 
nal is  produced,  and  it  bears  marks 
indicating   that   the   entries   have 
been  posted  into  a  ledger.    Prince 
v.  Sweet,  2  Mass.  569.     Compare 
Hervey  v.  Hervey,  15  Me.  357. 

98  And  the  testimony  of  a  witness 
that  the  reference,  in  the  book  pro- 


a  mistake,  does  not  justify  the 
admission  of  the  former  alone. 
Larue  v.  Rowland,  7  Barb.  107. 

"McCormick  v.  Elston,  16  111. 
204. 

1  Plummer  v.  Struby-Estabrooke 
Mercantile  Co.,  23  Colo.  190, 
47  Pac.  Rep.  294.  An  account 
book  is  a  book  of  original  entries, 
when  the  marks  therein  are  trans- 
ferred the  same  day  from  marks 
on  a  cart  made  by  a  servant  who 
delivered  the  loads.  Miller  v. 
Shay,  145  Mass.  162,  1  Am.  St. 
Rep.  449,  13  N.  E.  Rep.  468.  "To 
prepare  the  way  for  the  introduc- 
tion of  these  books,  it  was  proved 
that  the  bookkeeper  daily  weighed 
the  iron  and  took  an  account  of 
the  work,  and  made  the  entries  in 
the  books;  and  in  respect  to  the 
correctness  of  the  items  so  taken 
by  him,  and  as  to  whose  account 
they  were  applicable,  the  evidence 


844 


THE   FACT   OF   SALE 


should  be  made  under  an  existing  right  to  charge,  not  merely 
in  anticipation  of  such  a  right,2  and  must  appear  to  have  been 
made  for  the  purpose  of  charging,3  for  specific  things,4  the 
person  upon  whose  credit  the  transaction  was  had,5  as  dis- 
tinguished from  memoranda  of  orders,  or  deliveries,  or  of 
things  to  be  subsequently  done.6 

2.  There  must  have  been  some  course  of  dealing  between 
the  parties.    A  single  sale,  though  of  more  than  one  article, 
is  not  enough  to  constitute  that  relation  between  the  parties 
which  allows  the  books  to  be  admitted.7 

3.  Independent   evidence   that   some   article   or   service 
charged  was  furnished,  is  indispensable.8    Proof  of  this  prior 
to  the  tune  covered  by  the  account  is  insufficient.9    One 
article  delivered  and  one  item  of  work  done,  as  charged 
satisfy  this  requirement.10 

of  the  foreman  having  charge  of 
the  work  and  employes  in  the  shops, 
was  given  as  well  as  that  of  some 
of  the  members  of  the  firm  by 
way  of  verification  of  the  charges 
as  so  entered;  and  further  evidence 
of  persons  who  had  made  settle- 
ments with  the  firm  of  their  ac- 
counts upon  the  books  was  given 
bearing  upon  the  character  and 
correctness  of  the  accounts  kept 
by  them.  The  firm  had  in  their 
service  a  large  number  of  workmen; 
and  it  was  the  duty  of  the  book- 
keeper, aided  by  the  foreman,  to 
ascertain  what  the  work  was,  and 
for  whom  it  was  done,  and  make 
entries  of  it  daily  in  the  books. 
The  method  by  which  the  evidence 
tended  to  prove  this  was  accom- 
plished was  such  as  to  render  com- 
petent as  evidence  the  entries  in 


the  books  within  the  rule  applied 
in  Mayor,  &c.  of  N.  Y.  v.  Sec.  Av. 
R.  Co.  (102  N.  Y.  572);  West 
v.  Van  Tuyl  (119  N.  Y.  620);  In 


re  McGoldrick  v.  Traphagen  (88 
N.  Y.  334)."  Cobb  v.  Wells,  124 
N.  Y.  77,  80,  81,  26  N.  E.  Rep.  284. 

2  Heughley  v.  Brewer,  16  Serg.  & 
R.   133.     And   should  bear  some 
date,   though  not  necessarily  the 
day.      Cummings    v.    Nichols,x  13 
N.  H.  420. 

3  Lynch  v.  Petrie,  1  Nott  &  McC. 
130;  Walter  0.Bolman,8  Watts,544. 

4  Hughes  v.  Hampton,  2  Const. 
745. 

5  Rogers  v.  Old,  6  Serg.  &  R. 
454.     Mistake  in  the  person  may 
be  explained.     Schettler  v.  Jones, 
20  Wis.  412. 

6  Fairchild  v.  Dennison,  4  Watts 
(Pa.),  258;  Bradley  v.  Goodyear,  1 
Day  (Conn.),  104;  Terrill  v.  Beecher, 
9  Conn.  344. 

7  Corning  v.  Ashley,  4  Den.  354. 

8  Merrill  v.  Whitehead,  4  E.  D. 
Smith,  230. 

9  Conklin  v.  Stawler,  8  Abb.  Pr. 
395,  s.  c.,  2  Hilt.  422. 

10  Linnell  v.  Sutherland,  11  Wend. 


ACTIONS   FOR    PRICE    OF    GOODS,    ETC. 


845 


4.  The  rule  we  are  now  considering  does  not  apply  to 
admit  the  books  of  a  party  to  the  suit,  if  they  were  kept  by 
a  regular  clerk  or  bookkeeper,11  whose  business  it  was  to 
notice  sales  and  enter  them  in  the  books; 12  such  entries  are 
admissible  under  other  rules  already  stated.    But  the  books 
of  daily  entries  made  by  the  party  himself  are  not  rendered 
incompetent  by  the  fact  that  his  servant,  porter  or  messenger 
noted  in  temporary  form  the  deliveries  made  by  him,  and 
reported  them  to  the  party,  who,  upon  such  information, 
or  copying  from  the  temporary  memoranda,  made  the  en- 
tries in  question. 13   If  there  were  partners,  it  is  enough  to  pro- 
duce the  one  who  kept  the  book;  but  if  he  is  dead,  the  book 
may  be  admitted  on  the  oath  of  the  other,  if  he  can  testify 
to  his  knowledge  of  the  correctness  of  the  entries.14 

5.  To  show  that  the  party  kept  fair  and  honest  books, 

bookkeeper  can  have  but  little 
means  of  knowledge  personally 
as  to  the  transactions  done,  or 
information  relating  thereto,  ex- 
cept what  is  mainly  derived  from 
others."  McGoldrick  v.  Trap- 
hagen,  88  N.  Y.  334,  338.  The 
wife  of  a  dealer,  who  makes  en- 
tries in  his  books  of  account  from 
memoranda,  made  by  the  dealer 
at  the  time  of  the  sale,  and  sub- 
sequently furnished  by  liim  to  her, 
is  not  a  clerk  within  the  meaning 
of  the  rule  relative  to  the  proof 
which  makes  the  books  of  a  mer- 
chant competent  evidence  of  a 
sale.  Smith  v.  Smith,  13  App. 
Div.  (N.  Y.)  207. 

13  Within  reasonable  limit  of 
time  for  the  keeping  of  such  ac- 
counts, see  Id.;  Stroud  v.  Til  ton, 
4  Abb.  Ct.  App.  Dec.  324;  Haupt- 
man  v.  Catlin,  1  E.  D.  Smith,  729. 

14Krom  v.  Levy,  1  Hun,  172. 
And  see  Butler  v.  Cornwall  Iron 
Co.,  22  Conn.  360. 


568.  A  servant  is  a  competent 
and  necessary  witness  to  support 
charges  and  prove  delivery,  when 
goods  are  delivered  by  a  servant, 
and  his  entries  or  marks  are  trans- 
ferred to  the  master's  account 
book,  which  is  offered  in  evidence. 
Miller  v.  Shay,  145  Mass.  162,  1 
Am.  St.  Rep.  449,  13  N.  E.  Rep. 
468. 

11  Gould  v.   Conway,   59  Barb. 
355;  Merrill  v.  NIthaca,  &c.  R.  R. 
Co.,  16  Wend.  587. 

12  Sickles  v.  Mather,  20  Wend. 
72.    "We  think  that  the  clerk  in- 
tended was  one  who  had  something 
to   do   with   and   had   knowledge 
generally   of   the  business   of  his 
employer    in    reference    to    goods 
sold   or   work   done,   so   that   he 
could  testify  on  that  subject.     It 
evidently  means  an  employe  whose 
duty  it  is  to  attend  to  the  details 
of  business,  and  thus  is  able  to 
prove  an  account,  and  not  one  who 
from    his    isolated    position    as    a 


846 


the  testimony  of  one  witness  is  enough,  who  has  dealt  with 
the  party,  and  settled  with  him  by  his  account; 15  and  ho 
may  be  an  employee  who  has  dealt  with  the  employer,16  or 
a  witness  to  settlement  by  customers.17 

A  settlement  by  the  ledger  is  enough,  though  the  witness 
did  not  see  the  day-books. 18  The  evidence  of  fair  and  honest 
accounts  should  be  directed,  in  part  at  least,  to  the  period 
covered  by  the  dealings  in  question.19 

The  competency  of  an  account  under  these  rules  is  a  pre- 
liminary question  for  the  court.20 

An  account  offered  in  evidence  under  these  rules  should 
be  submitted  to  the  judge  for  inspection.21  But  if  the  books 
are  shown  to  have  been  lost  or  destroyed,  secondary  evi- 
dence of  their  contents  may  be  received.22  Without  laying 


16  Beattie  z>.  Qua,  15  Barb.  137. 

» McGoldrick  v.  Traphagen,  88 
N.  Y.  334,  337.  In  this  case  it 
was  said:  "The  rule  in  regard  to 
this  subject  is  that  the  party 
shah1  prove  by  those  who  have 
dealt  and  settled  with  him  that 
he  keeps  fair  and  honest  accounts. 
(Vosburgh  v.  Thayer,  12  Johns. 
461.)  We  do  not  discover  any 
reason  why  a  bookkeeper  who  has 
an  account  with  his  employer  is 
not  a  competent  witness  within 
the  rule  stated.  He  deals  with 
the  employer,  has  an  account 
which  he  has  settled  from  the  books 
and  ought  to  be  able  to  state 
whether  the  accounts  were  honestly 
and  fairly  kept.  The  rule  is  a 
general  one  and  no  reason  exists 
why  it  should  be  restricted  in  its 
operation  so  as  to  exclude  any  one 
who  deals  with  the  party."  See 
also  Smith  v.  Smith,  13  App.  Div. 
(N.  Y.)  207. 

17  McAllister  v.   Real,  4  Wend. 
483.      Or    any    witness    who    can 


prove  actual  accuracy.  WOOD- 
RUFF, J.,  in  Foster  v.  Coleman,  1 
E.  D.  Smith,  85. 

18Stroud  v.  Tilton,  4  Abb.  Ct. 
App.  Dec.  324. 

"Foster  v.  Coleman,  1  E.  D. 
Smith,  85. 

20  Larue    v.    Rowland,    7    Barb. 
107.    Objections  to  its  admissibility 
must  be  made  on  the  trial,  or  they 
cannot   be   considered  on  appeal. 
Peck  v.  Richmond,  2  E.  D.  Smith, 
380;  Brahe  v.  Kimball,  5  Sandf. 
237.    Where  the  books  of  a  party 
are  read  in  evidence  for  him  with- 
out objection,   they  are  evidence 
by  consent,  and  are  to  be  weighed 
by  the  jury.     Brahe  v.   Kimball, 
5  Sandf.  237. 

21  It  cannot  be  proved  by  de- 
position   without    production    in 
court.      Churchill    v.    Fulliam,    8 
Iowa,  45. 

"Holmes  v.  Harden,  12  Pick. 
169.  And  see  Hilderbrant  v. 
Crawford,  6  Lans.  600;  Prince  K. 
Smith,  4  Mass.  455.  Books  of 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


847 


a  foundation  for  secondary  evidence,  a  copy  is  not  admis- 
sible.23 Abbreviations  24  and  symbols  25  may  be  explained  by 
parol,  by  testimony  other  than  that  of  the  party  himself.26 
The  party  may  explain  by  stating  his  usage,  not  by  stating  a 
secret  intent.  The  fact  that  the  book  has  been  mutilated 
in  a  part  not  appearing  to  be  material  to  the  issue,  such  as 
having  leaves  torn  out,  etc.,  does  not  make  it  incompetent, 
but  goes  to  its  credit.27  But  apparent  alterations  or  erasures 
in  a  part  material  to  the  cause  must  be  explained  before  the 
account  can  be  admitted.28  Any  fact  showing  the  books 
unworthy  of  credit  may  be  proved,  such  as  bad  method  of 
bookkeeping;  or  bad  business  character  of  the  party;  or 
erasures,  mutilations,  etc.29  But  not  the  general  bad  moral 
character  of  the  party.30 

An  account  properly  in  evidence  under  this  rule  is  com- 
petent evidence  of  the  facts  of  sale,  of  the  dates,31  of  the 
price  or  value,32  and  of  the  delivery; 33  but  not  evidence  of 


account  are  not  the  best  evidence, 
so  as  to  render  inadmissible  oral 
testimony  as  to  payments  credited 
therein,  and  their  application. 
Christman  v.  Pearson,  100  Iowa, 
634,  69  X.  W.  Rep.  1055. 

23  Reddington     v.     Oilman,      1 
Bosw.  235. 

24  Curnen  v.  Crawford,  4  Serg. 
&R.  3. 

26  Rowland  v.  Burton,  2  Harr. 
(Del.)  288. 

26  Cummings  v.  Nichols,  13  N. 
H.  420.     His  own  testimony  for 
this  purpose  ought  to  be  received 
if  it  goes  to  show  habitual  usage, 
not  merely  a  secret  intent  on  the 
particular  case. 

27  Jones  v.  Dekay,  2  Penn.  995, 
N.  J.  (Ed.  of  1835,  p.  695).    Ac- 
count   books   are   not   discredited 
for  the  purpose  of  evidence  by  the 
fact  that  some  entries  are  made 


therein  for  items  which  cannot  be 
allowed  by  the  court,  if  there  is 
nothing  to  indicate  that  they  were 
fraudulently  or  dishonestly  made. 
Chisholm  v.  Beaman  Machine  Co., 
160  111.  101, 43  X.  E.  Rep.  796. 

28  Churchman  v.  Smith,  6  Whart. 
106. 

MLarue  v.  Rowland,  7  Barb. 
107. 

30Tonalinson  v.  Bort,  30  Barb. 
42. 

31  Sickles  v.  Mather,  20  Wend.  72. 

32  Morrill  v.  Whitehead,  4  E.  D. 
Smith,  239. 

It  has  been  held  that  an  item- 
ized account,  duly  sworn  to,  raises 
a  primafade  case  as  to  the  amount 
thereby  appearing  to  be  due.  Carr 
v.  Alexander,  169  N.  C.  665,  86 
S.  E.  Rep.  613. 

33  See    also    paragraphs    4    and 
28. 


848  THE   FACT   OF   SALE 

any  other  matter  than  the  issue  of  debt  and  credit  between 
the  parties.34 

Pass  books,  kept  by  one  party  and  written  up  by  the  other, 
are  competent,  irrespective  of  whether  the  entries  were 
original  memoranda,  or  copies.35 

40.  When  Using  Part  of  an  Account  Admits  the  Rest. 

If  a  party  uses  books  of  account  against  his  adversary,  he 
makes  them  evidence  for  the  adversary  on  the  same  subject. 
They  are  like  any  declaration  or  admission  by  writing  or 
orally;  if  part  is  used,  the  whole  qualifying  the  same  matter 
is  admissible.  He  cannot  offer  his  books  in  evidence,  to 
establish  some  things,  under  the  restriction  that  they  should 
not  be  received  to  prove  others,  to  show  which  they  were 
equally  competent.36  After  they  have  been  introduced  hi 
evidence,  they  are  available  as  the  property  of  both  parties, 
as  evidence,  and  he  who  adduced  them  cannot  withdraw 
them  from  the  consideration  of  the  jury,  without  consent 
of  the  adverse  party.37  Hence  when  one  party  has  used  the 
account  to  establish  credits  hi  his  favor,  it  is  competent  for 
the  other  plaintiff  to  read  from  the  same  books,  entries, 
although  they  were  made  by  himself,  which  show  that  those 
credits  have  been  exhausted  by  counter-charges  of  debit, 
made  at  about  the  same  tune  and  afterward.38 

41.  Memoranda  as  Part  of  the  Res  Gestae. 

In  connection  with  the  last  few  paragraphs  reference 
should  be  had  to  the  rule  admitting  entries  and  declarations 

34  Batchelder    v.     Sanborn,     22  72;    Winans   ?.  Sherman,  3   Hill, 
X.  H.  (2  Fost.)  325,  rev'g  cases.  74.    But  he  may  contradict  items. 

35  Burke  v.  Wolfe,  38  Super.  Ct.  Walden   v.   Sherburne,    15  John*. 
(J.  &S.)263.   The  entries  in  a  pass  409. 

book  which  has  been  continuously  3"  Clinton  v.  Rowland,  24  Barb. 

in  the  possession  of  the  customer  634,  and  cases  cited. 

are  presumptively  correct,  and  the  38  Dewey  v.  Hotchkiss,  30  N.  Y. 

book  is  admissible  without  further  497.    Detached  items  in  accounts, 

•  proof  of  its  correctness.    Wilshusen  however,    are    not   necessarily    so 

T.  Binns,  19  Misc.  (X.  Y.)  547.  connected  that  the  one  drags  in 

M  Pendleton  i\  Weed,  17  N.  Y.  the  other.    1  Whart.  Ev.  591,  §  620. 


ACTIONS   FOR    PRICE    OF    GOODS,    ETC.  849 

as  part  of  the  res  gestce  of  an  act  already  properly  in  evidence, 
a  rule  which  has  been  sufficiently  illustrated  elsewhere.39 

42.  Admissions  and  Promises  to  Pay. 

In  proving  oral  admissions,  etc.,  the  witness  must  state 
the  facts,  and  the  conversation  hi  substance  at  least;  and 
not  his  own  conclusion  derived  therefrom.40  An  admission 
or  declaration  made  by  a  party  in  writing 41  is  competent 
against  him,  without  calling  him.  If  a  memorandum  of 
defendant's  admission  was  made  by  plaintiff  or  his  agent, 
it  need  not  be  produced,  unless  it  was  communicated  to 
defendant.42  Upon  the  question,  whether  a  transaction  was 
a  sale  or  not,  it  is  competent  to  prove  an  entry  made  by  the 
plaintiff  in  his  books,  of  the  transaction  as  a  sale,  if  accom- 
panied by  proof  that  the  entry  was  subsequently  read  to  the 
defendant,  and  he  admitted  its  correctness.43  The  existence, 
and  defendant's  knowledge  of  the  demand  being  shown  by 
other  evidence,  defendant's  acknowledgment  of  an  indebted- 
ness is  presumed  to  have  referred  to  the  demand  proven,  hi 
the  absence  of  proof  that  other  demands  existed,  to  which 
the  acknowledgment  might  apply.44  A  promise  "to  settle, " 
if  made  in  reference  to  a  demand  of  a  liquidated  amount,  is 
equivalent  to  a  promise  to  pay.45  On  a  promise  to  pay  in  a 

39  Chapter  VI,  paragraph  9;  chap-          42  Parsons  v.  Disbrow,  1  E.  D. 
ter   XII,    paragraph    16,    chapter      Smith,  547. 

XIII,  paragraphs  5  and  18;  chap-          "  Tanner  v.  Parshall,  4  Abb.  Ct. 

ter    XIV,    paragraph    2;    chapter  App.  Dec.  356,  s.  c.,  5  Abb.  Pr.  N. 

XV,  paragraph  3;  and  see  Arms  v.  S.  373,  and  35  How.  Pr.  472. 
Middleton,  23  Barb.  571.  44  McNamee  v.  Tenny,  41  Barb. 

40  Parsons  v.  Disbrow,  4  E.  D.  495;  Sugar  v.  Davis,  13  Ga.  462. 
Smith,  547.  The  sufficiency  of  this  evidence, 

41  Even  though  dictated  to  plain-  alone,  is  questionable. 

tiff's  agent,  and  unsigned  by  de-  45  Barker  v.  Seaman,  61  N.  Y. 

fendant.     Wollenweber  v.  Ketter-  648. 

linus,  17  Penn.  St.  389.  Where  the  vendor  agreed  to 
The  writing  may  be  explained  deliver  on  a  certain  date  but  de- 
provided  it  can  be  done  without  livery  was  not  made  until  some 
verifying  its  effect.  Ellwood  v.  days  later  and  thereafter  the 
McDill,  105  Iowa,  437,  75  X.  W.  vendor  informed  the  purchaser  that 
Rep.  340.  the  property  had  been  shipped 


850  THE    FACT   OF   SALE 

contingency,  though  indefinite — such  as  to  pay  when  able 
—plaintiff  should  show  that  the  contingency  has  occurred. 

The  admissions  and  declarations  of  defendant 's  agent  are 
competent  only  when  shown  to  have  been  made  by  him  at 
the  time  of  making  the  agreement  about  which  he  was  em- 
ployed, or  while  acting  within  the  scope  of  his  authority.46 
Upon  proof  that  defendant  referred  plaintiff  or  his  agent  to 
a  third  person  for  information,47  the  admissions  and  declara- 
tions of  the  latter,  made  pursuant  to  the  reference  to  him, 
are  competent  against  defendant.48 

An  admission  of  a  distinct  fact,  such  as  the  correctness  of 
an  account  presented  to  the  party,  may  be  proved  against 
him,  though  made  during  a  negotiation  for  settlement,  and 
coupled  with  an  offer  to  allow  the  account  on  a  condition; 49 
and  after  the  correctness  of  the  items  has  thus  been  proved, 
the  account,  and  entries  and  vouchers  concerning  the  items, 
are  admissible.50 

43.  Auction  Sales. 

An  auctioneer  suing  in  his  own  name  need  not  prove  that 
he  has  a  special  property  or  interest,  for  that  follows  from 
his  position  as  an  auctioneer.51 

Under  the  statute  of  frauds,  as  applicable  to  auctions,52 
one  who  has  to  prove  compliance  with  the  statute  must  pro- 

and  the  latter  replied  that  he  would  332.      (Admissions    of    corporate 

remit  the   "first  payment"  upon  officer.) 

the  arrival  of  the  property,  it  was  "  Bank  of  New  York  v.  Am.  Dock 

held  that  in  the  absence  of  any  &  Trust  Co.,  143  N.  Y.  559,  566, 

consideration  for  the  statement  in  38  N.  E.  Rep.  713;  Low  v.  Hart, 

the  letter,  or  that  the  vendor  had  90  N.  Y.  457,  461;  Allen  v.  Kil- 

acted  upon  it,  it  did  not  constitute,  linger,  8  Wall.  480. 

as  a  matter  of  law,  a  waiver  of  any  48  Folsom  v.  Batchelder,  2  Fost. 

right   of   the   purchaser   to   claim  (N.  H.)  47. 

damages  for  the  delay.    Alabama  49  Bartlett  v.  Tarbox,  1  Abb.  Ct. 

Const.  Co.  v.  Continental  Car  Co.,  App.  Dec.  120. 

131  Ga.  365,  62  S.  E.  Rep.  160.  » Id. 

46  Vail  v.  Judsoi),  4  E.  D.  Smith,  51  Minturn  ».  Main,  7  N.  Y.  220. 

165;  McClave-Brooks  Co.  v.  Bel-  "Personal  Property  Law,  §31, 

zoni  Oil  Works,  74  So.  Rep.  (Miss.)  am'd  by  L.  1911,  c.  571. 


ACTIONS    FOR   PRICE    OF    GOODS,    ETC.  851 

duce  or  account  for  the  memorandum,53  and  show  that  it 
was  made  by  the  auctioneer  or  his  clerk  at  the  time  of  the 
sale,54  that  is  to  say,  before  other  business  intervened  after 
the  auction,  so  that  nothing  was  left  to  memory.55  In  case 
of  a  continued  sale  of  many  parcels,  it  is  sufficient  to  prove 
that  the  memorandum  was  kept  complete  as  to  everything 
but  subscription,  as  the  sale  progressed  from  day  to  day, 
and  was  subscribed  (where  necessary)  immediately  upon 
the  close  of  the  sale.56 

The  memorandum  must  show  everything  necessary  to 
establish  the  existence  of  the  contract  without  having  re- 
course to  extrinsic  evidence.57  For  the  purpose  of  making 
out  the  facts  required  by  the  statute  of  frauds,  the  printed 
terms  of  sale  or  other  separate  papers  cannot  be  used,  unless 
referred  to  in  the  memorandum  which  was  subscribed,55  or 
unless  physically  annexed  at  the  time  of  sale.59  A  coinci- 
dence in  the  contents  of  separate  papers  is  not  enough  to 
connect  them;  *°  nor  is  evidence  that  the  papers  were  actually 
intended  by  the  parties  to  be  read  together.61  A  mistake 
in  the  given  name  of  the  buyer  may  be  corrected  by  parol, 
if,  rejecting  the  erroneous  words  or  letters,  enough  remains 
to  identify  the  person  by,  with  the  aid  of  extrinsic  evidence.62 
And  the  identity  of  the  property  may  be  ascertained  if  the 

53  Davis   v.    Robertson,    1    Mill  59  Tallman  v.  Franklin,  14  N.  Y. 
(S.  C.),  71.  588,  rev'g  3  Duer,  395. 

54  Frost  v.   Hill,   3  Wend.   386;  «°So  held  of  a  mere  coincidence 
Price    v.    Durin,    56    Barb.    647;  of   dates,    between   the   catalogue 
Hicks    v.    Whitmore,     12    Wend.  containing  terms  of  sale  of  speci- 
548;  Walker  v.  Herring,  21  Gratt.  fied  lots  for  a  day  named,  and  a 
679,  s.  c.,  8  Am.  Rep.  616.  memorandum  of  sale  of  a  lot  by 

55  Hicks   v.    Whitmore    (above) ;  the     catalogue     number.       Peirce 
Goelet     v.     Cowdrey,      1      Duer,  v.  Corf,  L.  R.  9  Q.  B.  210,  s.  c., 
140.  8  Moak  Eng.  316;  and  see  First 

66  Price     v.     Durin,    56     Barb.  Church  v.  Bigelow,  16  Wend.  32. 
647.  G1  Johnson  v.  Buck,  35  N.  J.  338, 

57  First  Baptist  Church  v.  Bige-  s.  c.,  10  Am.  Rep.  243,  and  cases 
low,  16  Wend.  31,  and  cases  cited.  cited. 

58  Norris   v.   Blair,   39   Ind.   90,          62  Pinckney  v.  Hagadorn,  1  Duer, 
s.  c.,  10  Am.  Rep.  135.  97. 


852  THE    FACT   OF   SALE 

memorandum  contains  the  means  of  identification  by  aid  of 
extrinsic  evidence.63 

The  written  or  printed  terms  of  sale  cannot  be  varied  by 
evidence  of  the  parol  declarations  of  the  auctioneer.64  The 
quantity  or  amount  of  property  offered  in  a  lot  may  be 
proved  by  parol; 65  and  so  may  the  fact  that  misdescriptions 
in  the  catalogue  were  publicly  corrected.66  But  the  rules 
excluding  oral  evidence  to  explain  or  vary  the  contract, 
which  have  already  been  stated  in  the  case  of  other  modes 
of  contract  under  the  statute  of  frauds,  apply  to  sales  by 
auction. 

44.  Sales  through  a  Broker. 

The  broker's  authority  must  be  shown,67  if  his  entry  or 
memorandum  is  relied  on  as  the  evidence  of  the  sale;  but  it 
need  not  be  in  writing.68  If  it  appears  that  he  was  employed 
by  one  party,  the  question  whether  he  was  also  agent  for 
the  other,  is  usually  one  of  fact;  and  the  presumption  that 
he  was,  if  any  such  arises  from  his  character  of  broker,  is 
repelled  by  evidence  that  the  other  party  had  another  agent 
or  broker  in  the  transaction.69  Although  his  original  au- 
thority was  only  from  one,  his  authority  to  bind  the  other 
may  be  shown  by  the  ratification  by  the  latter  of  his  act.70 

In  respect  to  the  mode  oi  proving  the  contract,  especially 
where  the  statute  of  frauds  requires  a  memorandum,  the 
following  rules  are  guides: 

•»  Tallman  v.  Franklin,  14  N.  Y.  6»  Dilworth  v.  Bostwick,  1 

584,  rev'g  3  Duer,  395.  Sweeny,  588,  MONNELL,  J. 

64  Shelton  v.  Livius,  2  Crompt.  &  70  Hankins  v.  Baker,  46  N.  Y. 

J.  411;  Wright  v.  Deklyne,  Pet.  666.  It  may  be  proved  by  evi- 

C.  C.  199.  Compare  Hadley  v.  dence  that  he  sent  a  note  of  the 

Clinton,  13  Ohio  St.  502.  bargain  to  the  buyer,  who  kept 

es  Wright  v.  Deklyne  (above).  it  without  objection  until   called 

66  Eden  v.  Blake,  13  M.  &  W.  on  to  fulfill  the  contract,  when  he 
614.  objected  merely  on  the  ground  that 

67  Moses  v.  Banker,  7  Robt.  441.      the  broker  did  not  sign  it,  Thomp- 
68Merritt  v.   Clason,    12  Johns.      son  v.  Gardiner,.!  C.  P.  Div.  777, 

102,  affi'd  in  14  Johns.  484.  s.  c.,  18  Moak's  Eng.  328;  or  sent 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


853 


1.  The  broker's  entry  in  his  book,  subscribed  by  him,71 
satisfies  the  statute.    If  authorized,  it  constitutes  the  con- 
tract between  the  parties,  and  is  binding  on  both.72    And  it 
need  not  be  shown  that  he  communicated  it  to  the  de- 
fendant,73 if  it  be  shown  that  he  was  authorized  to  make  it 
by  defendant.74    And  if  communicated,  a  variance  in  the 
terms  as  communicated,  does  not  impair  its  validity.75 

2.  If  the  broker  subscribed  such  an  entry,  bought  and 
sold  notes,  delivered  by  him,  do  not  constitute  the  con- 
tract.76 

3.  The  bought  and  sold  notes,  when  they  correspond  with 
each  other  and  state  all  the  terms  of  the  contract,  are  com- 
plete and  sufficient  evidence  to  satisfy  the  statute,  even 
though  there  be  no  entry  in  the  broker's  book,  or,  what  is 
equivalent,  only  an  unsigned  entry.77 

4.  Though  the  broker  made  such  an  entry,  if  he  did  not 
subscribe  it,  and  did  not  deliver  a  note,  the  terms  of  the 
contract  may  be  proved  by  parol  if  the  statute  of  frauds 
can  be  otherwise  satisfied.78 

5.  Either  a  bought  or  sold  note  alone  may  satisfy  the 


a  warehouse  order,  which  he  re- 
tained, and  upon  which  he  author- 
ized an  effort  to  sell  the  goods. 
Hankins  v.  Baker  (above). 

"Davis  v.  Shields,  26  Wend. 
341. 

72  Sivewright  v.  Archibald,  17 
Q.  B.  115,  s.  c.,  20  L.  J.  N.  S.  Q. 
B.  529;  Benj.  on  S.,  §290,  etc. 
(Contra,  I  Tayl.  Ev.  416.  Stephen 
says  the  question  is  unsettled. 
Steph.  Dig.  Ev.,  Art.  64,  n.)  Un- 
less apparently  made  only  for  an- 
other purpose.  Gallagher  v.  War- 
ing, 9  Wend.  28.  A  memorandum 
made,  for  his  own  convenience  of 
charges,  by  a  broker  who  merely 
brought  together  the  parties  who 
contracted,  is  not  the  contract. 
Aguirre  v.  Allen,  10  Barb.  74, 


affi'd,  on  other  points,  in  7  N.  Y. 
543. 

73  Merritt  v.  Clason,  12  Johns. 
102,    14    Id.    484;    Sivewright    ». 
Archibald  (above). 

74  See  Davis  v.  Shields,  26  Wend. 
341, 350. 

75  Sivewright        v.        Archibald 
(above). 

76  Same    authorities    and    same 
conflict. 

77  Id.    "Bought  and  sold  notes," 
such   as   are   commonly   used   by 
brokers  in  making  their  sales,  are 
competent    evidence    to    establish 
a  contract.    Murray  v.  Doud,  167 
111.  368,  47  N.  E.  Rep.  717. 

78  Waring  v.  Mason,   18  Wend. 
425. 


8o4  THE    FACT   OF   SALE 

statute; 79  and  though  both  are  shown  to  have  been  delivered, 
the  plaintiff  need  only  produce  the  one  delivered  to  him, 
unless  a  variance  appears.80 

6.  Where  one  note  only  is  offered  in  evidence,  the  party 
sought  to  be  charged  has  a  right  to  offer  the  other  note;  or 
the  subscribed  entry  in  the  book,  to  prove  a  variance.81 

7.  If  the  bought  and  sold  notes  correspond  with  each 
other,  but  vary  from  the  subscribed  entry  in  the  book,  the 
jury  may  find  that  the  acceptance  by  the  parties  of  the 
bought  and  sold  notes  constituted  a  new  contract  modify- 
ing that  which  was  entered  in  the  book. 

8.  If  the  bought  and  sold  notes  differ  with  each  other  in 
substance,82  and  there  is  no  subscribed  entry  showing  the 
terms  of  the  contract  in  the  broker's  book,  the  papers  do 
not  satisfy  the  requirement  of  the  statute.83 

The  understanding  of  a  mere  mutual  agent,  not  a-  broker, 
as  to  the  terms  of  sale,  unless  communicated  by  him  to  one 
party,  and  acceded  to,  or  not  objected  to,  by  the  other,  is 
not  evidence  of  a  contract  which  will  bind  both.84 

If  the  broker  was  agent  for  only  one  of  the  parties,  parol 
evidence  is  competent  to  show  that  the  contract  he  actually 
made  with  the  other  was  not  truly  stated  in  the  memoran- 
dum.85 If  he  was  agent  for  both  parties  such  parol  evidence 
is  not  competent; 86  but  it  may  be  shown  by  parol  that  the 
terms  stated  in  the  memorandum  exceeded  his  authority.87 
If  all  the. terms  appear  on  the  notes,  the  question  whether 

"This    conclusion    seems    sup-  v.   Rayner,    1    Mees.    &   W.   343; 

ported  by  the  doctrine  of  Butler  v.  Kempson  v.  Boyle,  3  Hurlst.  &  C. 

Thompson,  92  U.  S.  (1  Otto)  416;  763. 

and  Parton  v.  Crofts,  16  C.  B.  N.  S.          MSivewright        v.        Archibald 

11  (recognized  in  42  N.  Y.  520);  (above). 
Hankins  v.  Baker,  46  N.  Y.  666.  8<  Fiedler  ».  Tucker,  13  How.  Pr. 

80  Durrell  v.  Evans,  1  H.  &  C.  9,  MITCHELL,  J. 
174,  s.  c.,  31  L.  J.  Ex.  337,  1  Tayl.          »  See  Davis  v.  Shields,  26  Wend. 

Ev.  416.  341. 

81Sivewright  "     v.        Archibald          M  Coddington    v.    Goddard,     16 

(above) .  Gray,  436. 

82  Variances    may   be  _  explained          a  Id.;  Peltier  v.  Collins,  3  Wend, 

bv  parol  to  be  not  material.    Bold  459. 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC.  855 

the  transaction  was  a  sale  or  for  some  other  purpose,  may 
be  determined  by  the  aid  of  a  separate  writing  though  ad- 
dressed to  a  third  person,  if  subscribed  by  the  party  to  be 
charged.88 

45.  Demand.89 

The  fact  that  the  contract  fixed  a  tune  and  place  for  pay- 
ment, does  not  require  plaintiff  to  prove  demand  before 
suit; 90  but  if  the  contract  is  so  expressed  as  to  make  demand 
a  condition  precedent,91  or  the  price  was  payable  in  specific 
articles,  to  be  furnished  by  the  debtor,  a  demand  and  refusal 
must  be  shown,92  unless  the  contract  is  so  expressed  as  to 
put  him  in  default  without  them.  And  where  the  defendant 
is  entitled  to  a  reasonable  tune  to  comply  with  a  demand, 
the  demand  must  be  made  a  reasonable  time  before  suing.93 

46.  Interest. 

Unless  a  credit  is  proven,  a  sale  is  presumed  to  have  been 
for  cash,94  and  if  it  be  shown  that  the  price  was  fixed,  either 
by  the  contract 95  or  by  the  buyer  promising,  on  receiving 
information  of  the  amount,  that  he  would  pay,95*  interest  is 
recoverable  from  the  time  of  demand. 

A  draft  drawn  by  plaintiff  upon  defendant  for  the  price, 
which  he  refused  to  accept,  is  equivalent  to  a  demand  of 
payment  for  this  purpose.96 

Where  there  is  a  general  usage  in  the  particular  trade  or 
branch  of  business,  or  among  merchants  of  the  place,  to 
charge  and  allow  interest,  parties  having  knowledge  of  the 

88  Peabody  v.  Speyers,  56  N.  Y.  »  Boutwell  v.  O'Keefe,  32  Barb. 
230.  434,  439. 

89  See  also  chapter  XIII,  para-  94  Pollock  v.  Ehle,  2  E.  D.  Smith, 
graph  20,  and  chapter  XV,  para-  541;  Knapp  v.  Hubbard,  176  Mich, 
graph  10  of  this  vol.  264,  142  N.  W.  Rep.  571. 

^Locklin  v.  Moore,  57  N.  Y.  « Beers  v.  Reynolds,  11  N.  Y. 

360,  affi'g  5  Lans.  307.  97,  affi'g  12  Barb.  288. 

91  Id.  95a  Pollock  v.  Ehle  (above). 

92  Smith  v.  Tiffany,  36  Barb.  23;  *  Cooper   v.    Coates,    21    Wall. 
Hunt  v.  Westervelt,  4  E.  D.  Smith,  111. 

225. 


85(5 


THE    FACT    OF    SALE 


usage  are  presumed  to  contract  in  reference  to  it.97  Evidence 
that  the  buyer  was  one  of  the  seller's  customers,  and  that 
plaintiff  always  charged  interest  after  a  certain  tune,  is 
prima  facie  enough.98 

47.  Non-payment. 

Unless  the  contract  is  special,  plaintiff  need  not  allege99 
or  prove1  non-payment;  but  the  sale  and  delivery  being 
proved  or  admitted,  the  burden  is  on  defendant  of  proving 
payment  if  he  rely  on  that  fact.2  Negotiable  paper  of  the 
buyer,3  or  of  his  agent,4  or  of  either  of  several  joint  buyers,5 
received  by  the  seller,  for  price,  whether  at  the  tune  of  the 


"Esterly  v.  Cole,  3  N.  Y. 
502. 

»Reab  v.  McAllister,  8  Wend. 
109,  affi'g  4  Id.  483.  The  admis- 
sion of  evidence  of  the  usages 
does  not  become  improper,  be- 
cause the  party  fails  subsequently 
to  furnish  the  necessary  proof 
that  the  other  had  knowledge  of 
the  usage.  Esterly  v.  Cole  (above) ; 
but  compare  Trotter  v.  Grant,  2 
Wend.  413;  Wood  t.  Hickok,  2 
Id.  501;  and  cases  cited  under 
paragraph  9,  above. 

"Salisbury  v.  Stimson,  10  Hun, 
242. 

1  Id.,    Buswell    v.    Poineer,    37 
N.  Y.  312. 

2  The  defense  of  payment  must 
be    established    by    a    preponder- 
ance of  evidence.    Bame  v.  Groat, 
171  N.  Y.  App.  Div.  708,  157  N.  Y. 
Supp.    750;   Christian   v.   Bryant, 
102  Ga.  561,  27  S.  E.  Rep.  666. 

See  Schwall  v.  Higginsville  Mill- 
ing Co.,  195  Mo.  A.  89,  190  S.  W. 
Rep.  (Mo.)  959.  See  Southern 
States  Co.  v.  Long,  73  So.  Rep. 
(Ala.  App.)  148;  Hughes  v.  Eastern 


Ry.,  etc.,  Co.,  93  Wash.  558,  161 
Pac.  Rep.  343. 

Under  the  Georgia  statute,  no- 
tice of  intention  to  resell  must  be 
given  to  the  original  purchaser. 
United  Roofing  Co.  v.  Albany  Mill 
Supply  Co.,  18  Ga.  A.  184,  89  S.  E. 
Rep.  177. 

3  Murray     v.     Gouverneur,     2 
Johns.   Cas.  438. 

A  purchaser  does  not  establish 
payment  by  mere  proof  of  the 
mailing  of  a  check  to  his  vendor. 
Cantasano  i\  Courtney,  98  Misc. 
623,  163  N.  Y.  Supp.  156. 

The  giving  by  the  purchaser  of 
a  check,  on  which  payment  was 
stopped,  does  not,  in  the  absence 
of  an  agreement  that  the  check 
should  constitute  payment, 
amount  to  a  payment  within  the 
statute  of  frauds.  Hessberg  v. 
Welsh,  147  X.  Y.  Supp.  44. 

4  Porter     r.     Talcott,     1     Cow. 
359;  Davis  v.  Allen,  3  N.  Y.  168; 
Higby  v.  X.  Y.  &  Harlem  R.  R. 
Co.,  3  Bosw.  497,  s.  c.,  7  Abb.  Pr. 
259. 

5  See    Bates    v.    Rosecrans,    37 


ACTIONS   FOR   PRICE    OF   GOODS,    ETC. 


857 


sale  or  at  any  other  time,  or  negotiable  paper  of  any  other 
person  6  received  by  the  seller  after  the  sale,  at  a  time  when 
the  price  may  be  regarded  as  a  pre-existing  debt,7  is  pre- 
sumed not  to  have  been  received  in  payment.  Negotiable 
paper  of  another  than  the  buyer  or  his  agent,  received  at 
the  tune 8  of  sale  and  delivery,  it  is  presumed  was  received 
in  payment.9 

These  presumptions  may  be  rebutted  by  evidence  of  an 
express  agreement  to  the  contrary,10  even  though  a  receipt 
was  passed  acknowledging  that  the  paper  was  given  hi  pay- 
ment.11 Such  an  agreement  may  be  inf erred  from  circum- 
stances, such,  for  instance,  as  that  the  buyer  guaranteed  the 
paper.12  But  the  fact  that  the  buyer  did  not  indorse  the 
paper  does  not  raise  a  presumption  that  there  was  no  agree- 
ment to  take  it  in  payment.13 

If  negotiable  paper  given  did  not  amount  to  payment 
under  these  rules,  the  seller  must  produce  and  offer  to  sur- 


N.  Y.  409,  s.  c.,  4  Abb.  Pr.  N.  S. 
276,  affi'g  23  How.  Pr.  98. 

6  Vail  v.  Foster,  4  N.  Y.  312; 
Smith  v.  Applegate,  1  Daly,  91. 

The  acceptance  by  the  seller  of 
notes  from  a  mere  volunteer  hav- 
ing no  privitjr  with  the  purchaser, 
and  'the  bringing  of  suit  thereon 
when  due,  do  not  relieve  the  pur- 
chaser from  liability  upon  the  con- 
tract. Gordon  Malting  Co.  v. 
Bartels  Brewing  Co.,  206  X.  Y. 
528,  100  N.  E.  Rep.  457, 
461. 

7  See  Gibson  v.  Tobey,  46  N.  Y. 
637,  53  Barb.  191. 

8  Gibson  v.  Tobey,  46  N.  Y.  637, 
53  Barb.  191,  and  cases  cited. 

9  Noel  v.  Murray,  13  X.  Y.  167, 
affi'g  1  Duer,  385;  see  also  Darnall 
v.  Morehouse,  45  N.  Y.  64,  rev'g 
36  How.  Pr.  511;  Combs  v.  Bate- 
man,  10  Barb.  573. 


10  Young  T.  Stahelin,  34  X.  Y. 
258;    Steamer    St.    Lawrence,    1 
Black,  522, 532. 

11  So  held  of  a  receipt  attached 
to  a  bill  of  parcels,  acknowledging 
that  the  seller  has  "received  pay- 
ment by  note."    Buswell  v.  Poineer, 
37  X.  Y.  312,  s.  c.,  4  Abb.  Pr. 
N.  S.  244, 35  How.  Pr.  447.    Other- 
wise  of   a   receipt    "on   account, 
without     recourse."      Graves     v. 
Friend,    5    Sandf.    568;    see    also 
Richard  v.  Wellington,  66  X.  Y. 
308. 

12  Butler  v.  Haight,  8  Wend.  535. 
Even   though    the   guaranty   was 
void,  for  not  expressing  a  consider- 
ation (Monroe  v.  Hoff,  5  Den.  360), 
for  it   shows    the    intent    equally 
well. 

13Whitbeck    v.    Van    Xess,    11 
Johns.  409. 


858  THE    PACT   OF   SALE 

render  it  at  the  trial,14  or  prove  that  it  is  lost  or  destroyed.15 
If  he  produces  it  for  cancellation,  the  fact  that  it  had  mean- 
while been  held  by  another  does  not  avail.16 

Evidence  that  the  seller  agreed,  as  part  of  the  contract 
of  sale,  to  receive  negotiable  paper  of  a  third  person  hi  pay- 
ment,17 unless  he  agreed  to  take  the  risk,18  does  not  pre- 
clude him  from  refusing  a  tender  of  it,  if  the  insolvency  of 
the  makers  became  known  thereafter  and  before  delivery.19 
In  such  case  he  may  recover  the  price.  Otherwise,  if  it  was 
not  known  to  either  party  till  after  delivery.20  Evidence  that, 
after  the  sale,  he  expressly  accepted  the  note  as  payment  of 
the  pre-existing  debt,  does  not  preclude  him  from  proving 
that  the  maker  was  then  insolvent,  and  that  he  was  ignorant 
of  the  fact;  and  thereupon  he  may  recover  the  price.21 

n.  DEFENDANT'S  CASE 
48.  Denial  of  Contract. 

Under  a  general  denial,22  or  denial  of  the  making  of  the 
contract  alleged,23  evidence  is  admissible  that  the  goods 

14  Holmes  v.  D'Camp,  1  Johns.  entitles  the  vendor  to  recover  a 

34;  Burdick  v.  Green,   15  Johns.  money  judgment  for  the  balance 

247.  due,  without  demanding  a  deed. 

14  Id.  Goodwin  v.  Heckler,  252  Pa.  332, 

18  Patterson  v.  Stettauer,  40  Su-  97  Atl.  Rep.  475. 

per.  Ct.  (J.  &  S.)  69.  22  Manning  v.   Winter,  7  Hun, 

"Benedict  v.  Field,   16  N.   Y.  482. 

595.  23  Wheeler  ».  Billings,  38  N.  Y. 

18  Id.    And  even  then  if  he  was  263;  Hawkins  v.  Borland,  14  Cal. 
induced  to  do  so  by  fraud.    Pierce  412;  Marsh  v.  Dodge,  66  N.  Y. 
r.  Drake,  15  Johns.  475.  533,  rev'g  4  Hun,  278. 

19  Id.  Under  a  general  denial,  the  de- 

20  Des  Arts  v.  Leggett,  16  N.  Y.  fendant  has  been  allowed  to  show 
582.  that  the  goods  were  furnished  upon 

21  Roberts  v.  Fisher,  43  N.  Y.  159.      the  understanding  that,  if  defend- 
Moreover,  under  a  contract  pro-      ant  would   secure   for  plaintiff  a 

viding  for  payment  partly  in  cash  discount  on  goods  purchased  from 

and  partly  by  a  transfer  of  real  his  principal,  the  goods  would  be 

property,  unreasonable  neglect  of  given  free.    In  this  case  it  was  held 

the   purchaser   to    tender   a   deed  that  the  burden  was  on  the  plaintiff 


DEFENDANT'S  CASE  859 

were  delivered  under  a  special  contract  which  was  substan- 
tially and  materially  different  from  that  alleged,  and  was 
unperformed  by  plaintiff.21  The  rules  as  to  contradicting 
an  apparent  written  agreement  of  sale  have  already  been 
stated.25  If  the  seller  has  testified  as  a  witness  to  prove  his 
sale,  he  may  be  impeached  on  cross-examination  by  asking 
if  he  has  not  offered  to  sell  again.26 

49.  Set-off  against  Plaintiff's  Agent. 

To  let  hi  the  state  of  the  accounts  between  defendant  and 
an  alleged  agent  of  plaintiff,  with  whom  defendant  dealt 
as  if  he  were  the  principal,  it  should  be  shown  that  the  plain- 
tiff had  intrusted  the  alleged  agent  with  the  possession  of 
the  goods,  that  such  person  had  sold  them  as  his  own,  in 
his  own  name;  that  defendant  dealt  with  him  as,  and  be- 
lieved him  to  be,  the  principal  in  the  transaction,  and  that 
before  he  was  undeceived  the  set-off  accrued.  It  is  not 
necessary  for  defendant  to  show  that  he  had  no  means  of 
knowing  that  such  person  was  only  in  appearance  the 
owner.27  The  fact  that  the  alleged  agent  charged  the  defend- 
ant a  commission,  and  the  fact  that  in  the  invoice  rendered  to 
defendant  he  did  not  charge  him  as  purchaser  from  him, 
but  for  goods  bought  by  his  order  and  on  his  account,  are 
relevant;  but  not  conclusive  against  letting  in  the  state  of 
the  accounts  between  the  defendant  and  the  agent.28 

to  show  the  agreement  as  alleged,  Rockwell,     162     N.     Y.     Supp. 

and  under  the  general  denial  the  210. 

defendant     could     introduce    any  2S  See    (paragraphs    8,    9,    &c.; 

evidence    controverting    plaintiff's  Lent  v.  Hodgman,  15  Barb.  274; 

theory  of  the  case.    General  Auto  Groot  v.  Story,  44  Vt.  200;  George 

Supply  Co.  v.  Rockwell,  162  N.  Y.  t.  Foy,  19  N.  H.  544. 

Supp.  210.  »  Knight  v.  Forward,  63  Barb. 

24  Manning   v.   Winter    (above).  311. 

If  the  answer  sets  up  that  defendant  a  Borries   0.   Imperial   Ottoman 

was  to  pay  when  he  could,  the  Bk.,  L.  R.  9  C.  P.  38,  s.  c.,7  Moak's 

burden  of  the  proof  is  upon  him  Eng.  138. 

to  make  out  the  defense.     John-  **  Armstrong    v.    Stokes,    L.   R. 

son    r.    Plowman,   49   Barb.    472;  7  Q.  B.  598,  s.  c.,  3  Moak's  Eng. 

General      Auto      Supply     Co.     r.  217. 


860  THE    FACT   OF   SALE 

50.  Denial  of  Agency  Binding  Defendant. 

Under  a  general  denial  defendant  may  contest  the  au- 
thority of  a  person  who  is  claimed  to  have  bought  as  his 
agent,  and  may  show  that  the  agency,  once  existing,  had  been 
revoked,  and  that  plaintiff  had  notice  of  such  revocation.29 
Evidence  of  the  way  in  which  the  alleged  agent  carried  on 
business  is  competent  for  that  purpose.30  But  if  the  ex- 
istence of  agency  is  admitted,  excess  of  authority  is  not 
provable  unless  alleged  in  the  answer.31  If  it  appear  that 
the  goods  were  purchased  on  credit  by  a  known  agent,  for 
use  of  a  known  principal,  the  presumption  is  that  the  credit 
was  given  to  the  principal  and  he  can  rebut  this  by  affirma- 
tive evidence  that  it  was  given  exclusively  to  the  agent.32 
This  fact  must  appear  clearly.33  The  fact  that  the  alleged 
agent  has  not  recognized  the  claim  as  his  debt,  is  not  com- 
petent in  favor  of  defendant.34 

51.  Plaintiff  an  Agent  for  Defendant. 

If  it  appear  that  plaintiff  was  the  agent  of  defendant  to 
buy,  he  must  prove  that  he  made  a  full  disclosure  to  plain- 
tiff of  the  fact  that  he  was  the  owner  of  the  goods  charged, 
or  the  nature  of  his  adverse  interest  in  the  transaction.35  It 
is  not  enough  to  prove  that  he  made  such  statements  as 
should  put  the  principal  on  inquiry.36  Agency  and  failure 
to  disclose  interest  being  shown,  the  facts  that  the  agent 
acted  without  compensation,  and  without  intent  to  defraud, 

29  Heir  v.  Grant,  47  N.  Y.  278.  "  Conkey  v.  Bond,  36  N.  Y.  427, 

30  Id.  s.  c.,  3  Abb.  Pr.  N.  S.  415,  affi'g  34 

31  See  Merchants'  Bank  v.  Gris-  Barb.  276;  Dunne  v.  English,  L.  R. 
wold,  9  Hun,  561.  18  Eq.  Cas.  524,  10  Moak's  Eng. 

32  Butler  v.  Evening  Mail  Assoc.,  837.     For  this  purpose  the  testi- 
61  N.  Y.  634,  rev'g  34  Super.  Ct.  mony  of   the  agent   is  not  alone 
(J.  &  S.)  58.  enough  to  countervail  that  of  the 

33  Meeker  v.  Claghorn,  44  N.  Y.  principal  to  the  contrary,  if  their 
349.  credibility  appears  equal.     Dunne 

.'"Turner  v.  See,  57  N.  Y.  667.      v.  English  (above). 
Compare  Springer  v.   Drosch,  32          36  Dunne  v.  English  (above). 
Ind.  486,  s.  c.,  2  Am.  Rep.  356. 


DEFENDANT'S  CASE  861 

and  made  no  false  representation,37  or  acted  according  to 
a  usage  of  trade,  not  shown  to  be  known  to,  and  assented 
to  by  the  defendant,38  are  not  material.  The  fact  that  plain- 
tiff, made,  or  assented  to  a  charge  for  commissions,  is  con- 
clusive against  him  to  show  that  to  some  extent  the  relation 
of  principal  and  agent  existed.39 

62.  Defendant  not  the  Buyer,  but  Agent  for  Another. 

Under  a  general  denial,  defendant  may  show  that,  in 
making  an  oral  contract  sued  on,  he  acted  as  agent  for  an- 
other, and  on  his  credit,  plaintiff  knowing  of  the  agency;40 
and  for  this  purpose  defendant  may  prove  the  relations  be- 
tween himself  and  his  alleged  principal; 41  but  the  subsequent 
admissions  of  the  latter,  that  he  was  the  real  debtor,  if  not 
part  of  the  res  gestce  of  an  act  properly  in  evidence,  are  not 
competent  against  the  plaintiff.42  If,  however,  the  contract 
was  in  writing,  and  defendant  appears  in  it  as  principal, 
parol  evidence  cannot  be  admitted  for  the  purpose  of  ex- 
onerating him,  even  though  he  should  propose  to  show,  if 
allowed,  that  he  disclosed  his  agency  and  mentioned  the 
name  of  his  principal  at  the  time  the  contract  was  executed; 43 
or  even  that  he  was  known  to  the  other  party  to  be  an  auc- 

"  Conkey  v.  Bond  (above).  4l  McDougall  v.  Hess,  68  N.  Y. 

38  Robinson  v.  Mollett,  L.  R.  7      620;    Fuller    v.    Wilder,    61    Me. 
Ho.  of  L.  802,  s.  c.,  14  Moak's      525. 

Eng.  177.  «  Wilson  v.  Sherlock,  36  Me.  295. 

39  Armstrong    v.    Stokes,   L.   R.      Compare  Black  v.  Richards,  2  Stew. 
7  Q.  B.  598,  s.  c.,  3  Moak's  Eng.      &  P.  (Ala.)  338. 

217.  43  Gordon  Malting  Co.  v.  Bar- 

40  Merritt  v.  Briggs,  57  N.  Y.  651.      tels  Brewing  Co.,  206  N.  Y.  528, 
A  suit  against  an  individual  will      100  N.  E.  Rep.  457,  461;  Nash  v. 

not  be  sustained  where  it  appears  Towne,   5  Wall.   703;   Higgins  v. 

that  the  goods  were  shipped  and  Senior,    8     Mees.     &     W.     844; 

charged  to  a  corporation,  of  which  Babbett  v.  Young,  51  Barb.  466. 

the  individual  was  an  officer.    To  Except,  perhaps,  where  he  or  his 

maintain  such  an  action  the  plaintiff  principal  was  a  public  officer,  and 

would  have  to  prove  that  the  com-  known    to    be    dealing    as    such, 

pany  was  not  a  corporation.    Wolf  Walker    v.    Christian,    21    Gratt. 

v.  Solomon,  59  Pa.  Super.  255.  (Va.)  291 . 


802  THE    FACT   OF    SALE 

tioneer  or  broker,  who  is  usually  employed  in  selling  or 
buying  property  as  agent,44  or  an  attorney  for  a  party  named 
on  the  record.45 

53.  By  Bidding  at  Auction. 

Where  a  buyer  at  auction  defends  on  the  ground  of  by 
bidding,  the  burden  of  proof  is  on  him  to  prove  the  fraud; 
but  if  there  be  proof  that  the  fraud  was  practiced  for  the 
purpose  by  the  auctioneer,  it  is  not  essential  that  he  should 
prove  that  the  owner  knew  of  it.46  But  it  should  appear 
that  defendant  was  actually  misled;  though  this  may  be 
inferred  by  the  jury  from  the  intent  to  mislead,  and  the 
nature  of  the  method  pursued.47 

54.  Rescission. 

When  the  maker,  or  seller,  of  an  article  takes  it  back  after 
delivery,  because  the  price  remains  unpaid,  the  legal  pre- 
sumption is  that  the  sale  is  rescinded,  unless  there  is  some 
evidence  to  show  an  intent  to  take  it  for  the  purpose  of  re- 
sale on  the  buyer's  account,  or  otherwise  not  to  discharge 
the  debt  for  the  price.48  Even  if  a  modification  or  rescission 
of  an  excutory  contract  may  be  proved  by  parol,  notwith- 

44  Mills  v.  Hunt,  20  Wend.  431;          If  the  fact  of  rescission  is  set 
McComb  v.  Wright,  4  Johns.  Ch.      up  by  the  defendant,  he  may  show 
659.  that    he    tendered    the    machines 

45  Chappell  v.  Dann,  21  Barb.  17.      back  and  afterward  held  them  sub- 
48  Curtis  v.  Aspinwall,  114  Mass,      ject  to  the  plaintiff's  order.    Evi- 

187,  s.  c.,  19  Am.  Rep.  332.  dence    of    conversations    between 

47  Id.  one  of  the  parties  and  the  agent 

48  Sloan  v.  Van  Wyck,  4  Abb.  of  the  other  as  to  the  terms  of 
Ct.  App.  Dec.  250,  affi'g  47  Barb,  rescission  is  also  admissible.    Os- 
634,  and  rev'g  36  Id.  335.  borne  &  Co.  v.  Ringland  &  Co., 

Where  a  return  of  the  goods  has  122   Iowa,  329,    98    N.  W.   Rep. 

been  accepted  pursuant  to  an  agree-  116. 

ment  to  rescind,  the  validity  of  As  to  whether  and  how  the  seller 

such    agreement    cannot    be    at-  may   rescind   the  sale   under  the 

tacked  for  want  of  consideration.  Sales  Act,  see  Personal  Property 

Battle  v.  Holmes,  146  Ga.  245,  91  Law  (N.  Y.  Con.  Laws),  §  142. 
S.  E.  Rep.  32. 


DEFENDANT  S   CASE 


863 


standing  the  statute  of  frauds,  still,  after  a  sale  has  been 
executed,  the  taking  back  is  a  new  contract  within  the  mean- 
ing of  the  statute,  and  its  terms  must  be  proved  by  the  stat- 
ute evidence.49  Evidence  of  the  insolvency  of  the  buyer, 
and  notice  of  it  given  by  him,  coupled  with  the  facts  that 
after  such  insolvency  no  steps  were  taken  indicating  an  in- 
tention to  stand  by  the  contract,  and  that  tune  for  several 
installments  passed  without  delivery  or  payment,  will  sustain 
an  inference  that  the  seller  had  a  right  to  conclude  that  the 
insolvent  had  abandoned  the  contract,  and  if  he  did  so  con- 
clude, had  a  right  to  abandon  it  himself.50  Where  the  seller 
has  been  defrauded,  lapse  of  time  without  rescinding  is 
some  evidence  that  he  has  determined  to  affirm  the  con- 
tract; and  when  the  laspe  of  tune  is  great,  it  may  be  treated 
as  sufficient  evidence  to  show  that  he  has  so  determined.1''1 
A  general  agent  to  buy  (though  in  a  particular  business 
only),  is  presumed  to  have  had  power  to  rescind,52  Other- 
wise, of  a  special  agent. 


«Blanchard  v.  Trim,  38  N.  Y. 
228.  Compare  9  Wall.  272,  and 
paragraph  27  of  this  chapter. 

The  burden  of  proving  rescis- 
sion is  on  the  purchaser,  and  unless 
he  establish  it,  there  can  be  no 
recovery  of  partial  payments  made 
on  the  purchase  price,  on  the  theory 
that  the  sale  was  rescinded.  Brook- 
side  Laundry  v.  Daley,  161  N.  Y. 
Supp.  259. 

50  Morgan    v.    Bain,    L.    R.    10 
C.  P.  15,  s.  c.,  11  Moak's  Eng. 
220,   and    cases   cited.     Compare 
Freeth  v.  Burr,  L.  R.  C.  P.  208, 
s.  c.,  9  Moak's  Eng.  393. 

51  Clough   v.    London   &   North 
Western  R.  Co.,  L.  R.  7  Exch.  26, 
35,  s.  c.,  1  Moak's  Eng.  148,  158. 
See   Manchester   Sawmills   Co.   v. 
A.  L.  Arundel  Co.,  73  So.   Rep. 
(Ala.)   24;  St.   Louis  Carbonating 


&  Mfg.  Co.  v.  Loevenhart,  190 
S.  W.  Rep.  (Mo.  App.)  627;  Brown 
v.  Domestic  Utilities  Mfg.  Co.,  172 
Cal.  733,  159  Pac.  Rep.  163;  Bayer 
v.  Winton  Motor  Car  Co.,  160 
N.  W.  Rep.  (Mich.)  642. 

"It  has  been  held  that  in  all 
sales  the  seller  has  a  right  to  as- 
sume that  the  purchaser  intends 
to  pay  for  the  goods  purchased, 
and  that  when  an  insolvent  pur- 
chaser, with  knowledge  of  his  in- 
solvency, purchases  property  on 
credit,  with  the  preconceived  and 
formed  intention  of  not  paying 
for  them,  this  constitutes  such  a 
fraud  upon  the  seller  as  will  enable 
him  to  rescind  the  contract." 
Scandinavian,  etc.,  Co.  v.  Skinner, 
56  Ind.  App.  520,  105  N.  E.  Rep. 
784. 

52  NELSON,  Ch.  J.     Anderson  v. 


864  THE    FACT   OF    SALE 

56.  Recoupment. 

The  breach  of  a  valid  agreement  between  the  same  parties, 
which  might  itself  be  subject  of  a  cross  action  against  the 
plaintiff,  may  always  be  given  hi  evidence  (under  proper 
pleading),  either  in  mitigation  of  damages  or  in  bar  of  an 
action  on  the  agreement  of  which  it  formed  either  the  whole 
or  part  of  the  consideration.  If  the  stipulation  on  plaintiff's 
part  was  a  condition  precedent  to  defendant's  obligation, 
evidence  of  its  breach  is  generally  admissible,  under  a  general 
denial;  but  otherwise  should  be  pleaded  by  defendant.53 

66.  Defects  in  Title,  Quantity  or  Quality. 

If  delivery  or  acceptance  is  in  issue  on  the  pleadings,  evi- 
dence that  the  thing  tendered  did  not  correspond  with  the 
contract,  or  that  plaintiff  could  not  give  title,  will  be  ad- 
missible, though  not  specially  pleaded;  but  if  acceptance  is 
admitted,  or  proved,  and  a  price  fixed  by  contract  is  relied 
on  by  plaintiff,  evidence  of  deficiency  in  quality  is  not  ad- 
missible, unless  set  up  in  the  answer.54  If  the  plaintiff  sues 

Coonley,  21  Wend.  279.    And  see  190;  Fetherly  v.  Burke,  54  N.  Y. 

Dillon  v.  Anderson,  43  N.  Y.  231;  646;  Levine  v.   Kosher  Matzoths 

Osborne  &  Co.  v.  Ringland  &  Co.,  Baking  Co.,  95  Misc.  565, 195  N.  Y. 

122  Iowa,  329,  98  N.  W.  Rep.  116.  Supp.  845;  M.  Hammel  Wine  Co. 

Under  a  provision  declaring  that  11.  Netter,  197  111.  App.  382;  Pol- 

the  contract  can  be  modified  only  son  Logging  Co.  v.  Neumeyer,  229 

by  a  certain  officer  of  a  company,  Fed.  Rep.  705,  144  C.  C.  A.  115. 
he  alone  can  consent  to  a  change.          Where  the  purchaser's  contract 

M.    S.    Sulunias    Banana    Co.    v.  entitles  him  to  delivery  of  a  def- 

Fruit  Dispatch  Co.,  18  Ga.  A.  306,  inite   quantity,   he   is   not  bound 

89  S.  E.  Rep.  376.  to  accept  a  tender  of  a  lesser  quan- 

53  The  leading  cases  are  Reab  v.  tity.      Owensboro    Wheel    Co.    v. 
McAllister,  8  Wend.  110;  Batter-  Trammell,  172  Ky.  564,  189  S.  W. 
man  v.  Pierce,  3  Hill,  171;  Harring-  702;   Weinmann   v.    Fellman,    162 
ton    v.    Stratton,    22    Pick.    510.  N.  Y.  Supp.  131. 

Compare    Seymour    v.    Davis,    2  Where,  in  an  action  to  recover 

Sandf.  239.    See  Adkins,  etc.,  Co.  the  price  of  goods,  it  appeared  that 

v.  Rhinelander  Paper  Co.,  199  111.  the  goods  had  been  obtained  by 

App.  347.  the  plaintiffs  through  a  thief,  who 

54  McCormick      v.      Sarson,      1  had  stolen  them  from  the  defend- 
Sweeney,  161,  s.  c.,  38  How.  Pr.  ant,  it  was  held  that  the  plaintiffs 


DEFENDANT  S   CASE 


865 


on  a  quantum  meruit,  evidence  of  deficiency  in  quality  is 
admissible,  if  alleged,  even  though  acceptance  under  a  con- 
tract fixing  a  price  be  proved.55  If  the  defendant  sets  up 
warranty,56  or  false  representation,57  either  directly,  or  by 
denying  that  there  was  a  purchase  except  upon  terms  spec- 
ified in  the  answer,58  the  burden  is  on  him  to  prove  the  de- 
fense. 
The  mode  of  proving  defects  is  stated  below. 

57.  Deceit. 

The  rules  regulating  the  mode  of  proof  of  false  represen- 
tations are  substantially  the  same  as  in  an  action  for  dam- 
ages.59 

58.  Inconsistent  Remedies. 

The  pendency  of  replevin  by  the  same  plaintiff  to  recover 
the  goods,  goes  in  bar  of  an  action  subsequently  brought 
for  the  price.60  The  pendency  of  a  mechanic's  lien  fore- 
closure, for  the  same  goods,  against  the  same  defendant,  is 
also  a  defense.61 


were  not  entitled  to  recover,  not- 
withstanding that  the  defendant, 
in  order  to  obtain  possession  of  the 
goods  from  the  plaintiffs,  had  prom- 
ised to  pay  a  price  therefor,  such 
promise  being  without  considera- 
tion. Marcus  v.  Mayer,  147  N.  Y. 
Supp.  973. 

"Moffett  v.  Sackett,  18  N.  Y. 
522. 

Where  the  article  furnished  by 
the  seller  is  different  from  the  one 
contracted  for  and  defendant  ac- 
cepts the  same  in  lieu  of  the  article 
bought,  the  seller  may  recover  on 
a  count  for  damages  for  the  breach 
of  the  buyer's  contract  to  accept 
any  pay  for  the  article.  Vinegar 
Bend  Lumber  Co.  v.  Soule  Steam 
Feed  Works,  182  Ala.  146,  62 
So.  Rep.  279. 


66  Purity  Ice  Co.  v.  Hawley 
Down  Draft  Furnace  Co.,  22  App. 
(D.  C.)  573,  594. 

"Dorr  v.  Fisher,  1  Cush.  271; 
Lane  v.  McLay,  91  Conn.  185,  99 
Atl.  Rep.  498. 

A  purchaser  of  goods  may  base 
his  right  to  rescind  upon  a  breach 
of  warranty.  Craven  ».  Quillin, 
73  So.  Rep.  (Ala.)  413. 

M  Goodwin  v.  Hirsch,  37  Super. 
Ct.  (J.  &  S.)  503;  Bronge  v.  Mowat, 
29  Cal.  App.  388,  155  Pac.  Rep. 
827. 

59  See  paragraphs  68,  &c.,  and 
the  Chapter  on  ACTIONS  FOR  DE- 
CEIT. 

80  Morris  v.  Rexford,  18  N.  Y. 
552.  Compare  Kinney  v.  Kiernan, 
49  N.  Y.  164. 

61  Ogden  v.  Bodle,  2  Duer,  611. 


800  THE    FACT   OF   SALE 

59.  Wager  Contract. 

Unless  the  terms  of  the  contract  show  the  contrary,  it  is 
presumed  that  delivery  was  intended.62  The  burden  is  on 
defendant 63  to  show  that  neither  party 64  intended  delivery. 
What  was  said  at  the  time  of  contracting  is  competent ; 65 
and  a  party  may  be  asked  what  was  his  intent.66  The  buyer's 
lack  of  means  to  pay,67  if  known  to  the  seller,68  or  the  fact 
that  both  were  endeavoring  to  make  "a  corner"  69  is  rel- 
evant; but  the  seller's  lack  of  the  property,  though  known 
to  the  buyer,70  or  that  one  party  made  wager  contracts  with 
other  persons,71  is  not. 

m.  ACTION  AGAINST  BUYER  FOR  DAMAGES  FOR 
NOT  ACCEPTING 

60.  General  Principles. 

Plaintiff  may  be  put  to  proof  of  the  contract,  the  per- 
formance of  all  conditions  precedent  on  his  part,  the  re- 
fusal to  receive,  and  the  amount  of  damage.72  The  rules 
already  stated  as  to  the  mode  of  proof  of  these  facts  are  in 
general  applicable.  Indeed,  under  a  complaint  alleging 
sale  and  delivery,  plaintiff  may  recover  on  proof  of  sale  and 
wrongful  refusal  to  accept,  if  defendant  is  not  misled  to 
his  prejudice,  for  the  variance  is  amendable.73 

82  Story  v.  Salomou,  71  N.  Y.  «7  Kilpatrick  v.  Bonsall,  72  Perm. 
420,  affi'g  6  Daly,  538.  St.  155. 

fi3  Bigelow  v.  Benedict,  70  N.  Y.  68  In  re  Green,  7  Bill.  338. 

206,  affi'g  9  Hun,  429;  Clarke  v.  69Ex  p.  Young,  6  Biss.  53. 

Foss,  7  Biss.  540.  70  Rumsey  v.  Berry  (above). 

64  Gregory  v.  Wendell,  40  Mich.  n  Gregory  v.  Wendell  (above). 
432,  s.  c.,  9  Cent.  L.  J.  76;  Warren  72  Rose.  N.  P.  495. 

r.  Hewitt,  45  Geo.  501;  Clarke  v.  In  the  event  of  an  anticipatory 

Foss  (above);  Pixley  v.  Boynton,  breach  on  the  part  of  the  buyer, 

79  111.  351;  Rumsey  v.  Berry,  65  the   seller   may   elect   to   rescind. 

Me.  570.  Wetkopsky    v.    Xew    Haven    Gas 

65  Caisard  ».  Hinman,  6   Bosw.  Light  Co.,  90  Conn.  286,  96  Atl. 
14.  950;  Goodman  v.  Whiting  Lumber 

68Yerkes   r.   Salomon,    11    Hun,      Co.,  62  Pa.  Super.  Ct.  230. 
471.  73  See  paragraph  1,  this  chapter. 


ACTIONS   FOK   NOT  ACCEPTING    GOODS,    ETC. 


867 


61.  Readiness  to  Perform. 

Where  delivery  and  payment  were  to  be  concurrent  acts, 
an  averment  that  at  the  time  and  place  fixed  plaintiff  was 
ready  and  willing  to  deliver,  etc.,  is  enough; 74  and  under 
this  allegation,  if  put  in  issue,  plaintiff  must  show  he  had 
the  article  ready  for  delivery,  and  that  it  corresponded  with 
that  contracted  for,75  and  either  that  he  offered  to  deliver, 
or  that  defendant  dispensed  with  delivery,  or  made  it  an 
idle  and  useless  form  to  attempt  to  deliver.  The  averment 
involves  the  ability  of  the  plaintiff  to  deliver.76  Evidence 
that  a  sufficient  quantity  of  goods  were  at  the  place  fixed 
for  delivery,  without  proving  that  they  were  plaintiff's 
property,77  or  that  he  had  a  right  to  sell  them,78  is  not 
enough  to  show  performance.  Excuse  for  breach  is  not 
admissible  under  an  allegation  of  performance.  But  if  the 
defendant  notified  of  his  intention  to  refuse,  and  forbade  the 


7<  Rose.  N.  P.  510. 

75  Boyd  ».  Lett,  1  C.  B.  222.    In 
an  action  to  recover  the  difference 
between    the    contract    and    the 
market  price  of  wheat,  which  the 
purchaser   has   refused   to   accept 
on   the   ground   that   it   was   not 
merchantable  as  stipulated  for  by 
the  contract,  the  burden  of  proof 
is  upon  the  plaintiff  to  show  that 
it  had  offered  to  deliver  the  kind 
of  wheat  called  for  by  the  contract. 
Pacific  Coast  Elevator  Co.  v.  Bra- 
vinder,    14    Wash.    315,    44    Pac. 
Rep.  544. 

See,  as  to  demurrability  of  a 
complaint  which  fails  to  allege 
the  market  value  of  the  property 
when  default  was  made,  Fletcher 
v.  Southern,  41  Ind.  App.  550,  84 
N.  E.  Rep.  526. 

76  Id.  citing  Lawrence  v.  Knowles, 
5  N.  C.  399;  De  Medina  v.  Nor- 
man, 9  M.  &  W.  820:  Spotswood  v. 


Barrow,  1  Exch.  804;  Riegal  Sack 
Co.  v.  Tidewater  Portland  Cement 
Co.,  95  Misc.  Rep.  202,  158  N.  Y. 
Supp.  954. 

In  an  action  on  an  executory  con- 
tract to  recover  the  price  of  prop- 
erty, plaintiff  cannot  recover  un- 
less he  has  tendered  a  delivery  of 
the  property  and  is  able  to  per- 
form. Security  Title  &  Trust  Co. 
v.  Stewart,  154  N.  Y.  App.  Div.  434, 
139  N.  Y.  Supp.  74. 

77  Cobb  ».  Williams,  7  Johns.  24. 
Where,  under  the  contract,  the 

buyer  is  to  give  shipping  directions 
to  the  seller  and  fails  to  do  so 
after  proper  demand,  there  Is  a 
breach  of  the  contract  to  accept 
and  pay  for  the  goods.  Gordon 
Malting  Co.  v.  Bartels  Brewing 
Co.,  206  N.  Y.  528,  100  N.  E. 
Rep.  456,  461. 

78  See  Nixon  v.  Nixon,  21  Ohio 
St.  114. 


808  ACTIONS    FOE   NON-DELIVERY,    ETC. 

plaintiff  to  deliver  goods  ordered  to  be  made,  then  plaintiff 
need  not  proceed  to  complete  the  contract  on  his  part,  and 
may  show  this  under  an  allegation  of  refusal  to  accept,  al- 
though the  goods  were  not  ready  for  delivery,  and  could 
not  be  delivered;  for  the  plaintiff  is  thereby  discharged  from 
proceeding  further;  and  such  a  notice  to  the  plaintiff  will 
support  an  allegation  that  the  defendant  prevented  and 
discharged  the  plaintiff  from  supplying  the  goods  and  ex- 
ecuting the  contract.79  To  support  an  allegation  of  plaintiff's 
readiness  to  manufacture  articles  ordered  by  defendant,  it 
is  enough,  in  the  first  instance,  to  show  that  defendant  had 
countermanded  the  manufacture  while  in  progress  and  after 
delivery  of  some,  and  had  notified  his  refusal  to  accept  any 
more.80 

IV.  ACTION  AGAINST  SELLER  FOR  NON-DELIVERY 

62.  General  Principles. 

The  general  principles  which  apply  to  the  various  facts 
to  be  proved  are  already  stated.  It  only  remains  to  notice 
some  rules  specially  applicable  in  this  class  of  actions. 

63.  Orders  and  Acceptance. 

Evidence  that  defendant,  hi  acknowledging  the  receipt 
of  an  order,  added  qualifications  as  to  undertaking  to  fill  it, 
rebuts  the  presumption  of  assent  raised  by  retaining  the 
order,  and  throws  on  plaintiff  the  burden  of  showing  that  he 
communicated  to  defendant  his  assent  to  any  new  condi- 
tions thus  made.81  The  holder,  by  assignment,  of  an  order 
on  defendant,  may  recover,  on  parol  evidence,  that  defend- 
ant had  verbally  accepted  the  order  when  in  the  hands  of 

79  Rose.  N.  P.  511,  citing  Cort          Where    defendant    in    accepting 
v.  Ambergate  Ry.  Co.,   17  Q.  B.  plaintiff's  offer  to  furnish  certain 
127,  144.  materials,  requested  that  a  portion 

80  Id.  citing  also  Baker  v.  Far-  thereof   be    rushed,    such    request 
minger,  L.  J.  28  Ex.  130.    See  also  did  not  vitiate  the  acceptance  as 
paragraph  30.  it   did    not    constitute   a    counter 

81  Briggs     v.    Sizer,    30    N.    Y.  offer.      Simpson    v.    Emmons,    99 
647.  Atl.  Rep.  (Me.)  658. 


ACTIONS    FOR  NON-DELIVERY,    ETC. 


869 


the  payee,  and  that  the  latter's  assignee  had  stipulated  to 
and  had  duly  performed  the  conditions  of  it.82  A  variance 
in  the  consideration  is  not  material,  unless  shown  to  have 
misled  defendant  to  his  prejudice.83 

64.  Readiness  to  Perform. 

Under  an  agreement  to  deliver  at  a  particular  place,  for 
payment  on  delivery,  the  buyer  must  allege  84  and  prove 85 
readiness  and  willingness  to  receive  and  pay  at  that  place, 
or  show  that  so  doing  was  waived  or  prevented  by  some  act 
of  the  seller; 86  and  this  is  so  whether  the  defendant  was  at 
the  place  ready  to  deliver  or  not.87  But  he  need  not  prove 
tender  and  demand.88  Any  satisfactory  evidence  that  plain- 
tiff was  able  and  willing  to  fulfill  the  terms  of  the  contract, 


82  Bailey 
115.     But 


V.    Johnson,    9    Cow. 

a  written  acceptance 
of  a  written  order  for  mere  delivery 
of  goods  is  not  a  sale,  but  a  prom- 
ise to  deliver  on  request;  and  so 
to  be  declared  on.  Burrall  v. 
Jacot,  1  Barb.  165. 

83  See,     for    instance,     Meriden 
Britannia  Co.  v.  Zingsen,  4  Robt. 
312,  affi'd  in  48  N.  Y.  247.     At 
common  law,  evidence  of  a  sale, 
and    payment    by    a    sight-draft, 
duly  paid,  will  support  a  declara- 
tion of  a  sale  for  so  much  "in  hand 
paid."    Nash  v.   Towne,   5  Wall. 
690. 

84  Clark  v.  Dales,  20  Barb.  42. 

85  Topping  v.  Root,  5  Cow.  404; 
Vail  r.  Rice,  5  N.  Y.  155;  Bronson 
r.  Wiman,  8  Id.  182. 

soCornwell  v.  Haight,  8  Barb. 
327.  In  strictness,  such  waiver  or 
prevention  is  not  appropriate  evi- 
dence under  an  allegation  of  readi- 
ness. Crandall  v.  Clark,  7  Barb. 
169,  171;  Cherrey  v.  Newby,  11 
Tex.  457.  But,  properly,  it  is  a 


question  of  variance,  to  be  disre- 
garded or  amended,  unless  defend- 
ant is  misled. 

It  has  been  held  that  a  tender  of 
payment  in  performance  of  a  con- 
dition of  the  contract  is  sufficient 
without  bringing  the  money  into 
court.  Bendix  v.  Staver  Carriage 
Co.,  194  111.  App.  310. 

87  Porter  v.  Rose,  12  Johns.  209. 

88  Coonley  v.  Anderson,  1  Hill, 
519;  Crosby  ».  Watkins,  12  Cal. 
85.     Compare  Dunham  v.  Pettee, 
8  N.  Y.  (4  Seld.)  508;  Baltimore 
Roofing  &  Asbestos  Mfg.  Co.  v. 
Rubber    Roofing    Mfg.    Co.,    160 
X.  Y.  Supp.  1006.    According  to 
the  English  authorities,  a  demand 
of  the  goods  is  sufficient  evidence 
that  the  plaintiff  was  ready  and 
willing  to  pay.    Wilks  v.  Atkinson, 
1   Marsh.   412;   Levy  v.   Herbert, 
Lord,    7    Taunt.    318;    and    this, 
though   the   demand   may   be  by 
the  plaintiff's   servant;   Squier   v. 
Hunt,  3  Price,  68,  cited  in  Rose. 
X.  P.  517. 


870  ACTIONS   FOR   NON-DELIVERY,    ETC. 

on  his  part,  is  sufficient.89  If  the  seller  refused  to  deliver, 
and  put  it  out  of  his  power  to  do  so,  it  is  unnecessary  for  the 
buyer  to  offer  to  pay  the  unpaid  price  before  suing; 90  and  if 
having  put  it  out  of  his  own  power  ever  to  perform,  he  dis- 
avows and  repudiates  the  contract,  this,  although  done  be- 
fore the  time  for  performance,  is  a  breach  without  further 
demand.91  Under  an  allegation  of  defendant's  non-delivery, 
evidence  of  his  tender  properly  refused  by  plaintiff,  is  ad- 
missible, unless  defendant  shows  he  was  actually  misled.92 

65.  Object  of  Buying. 

Plaintiff  may  prove  that  defendants  were  informed  that 
the  object  of  the  order  was  to  enable  plaintiff  to  fill  a  con- 
tract made  by  him  with  others,  and  that  defendants  con- 
tracted in  reference  to  that  fact,  as  evidence  affecting  the 
rule  of  damages.93 

66.  Defendant's  Case — Only  an  Agent. 

If  the  nominal  seller,  in  contracting,  did  not  disclose  his 
principal,  he  may,  if  he  disclosed  the  fact  that  he  was  acting 
as  agent,  exonerate  himself  from  liability  by  showing  a 
payment  over  to  his  principal,  or  other  special  circumstances 

89  Vail  v.  Rice,  5  N.  Y.  155.  Mach.  Works,  170  Ky.  384,   186 

*>  Hawley  v.   Keeler,  53  N.  Y.  S.  W.  Rep.  152. 
114,  affi'g  62  Barb.  231;  La  France          In  an  action  against  the  seller 

v.  Desautels,  225  Mass.  324,  114  for    non-delivery,    the    burden    of 

N.  E.  Rep.  312.  proving  such  non-delivery  is  upon 

91  Sears  v.  Conover,  4  Abb.  Ct.  the  plaintiff.    B.  P.  Ducas  Co.  p. 
App.  Dec.  179;  contra,  Daniels  v.  Bayer  Co.,  163  N.  Y.  Supp.  32. 
Newton,  114  Mass.  530,  s.  c.,  19          93  Messmore  v.   N.   Y.   Shot   & 
Am.  Rep.  384.  Lead  Co.,  40  N.  Y.  422;  Gorham 

92  Seaman  v.  Low,  5  Barb.  337.  v.  Dallas,  etc.,  Ry.  Co.,  106  S.  W. 

In  like  manner,  where  a  pur-  Rep.  (Tex.  Civ.  A.)  930.  Pro- 
chaser  counterclaims  for  non-  spective  profits,  so  far  as  they 
delivery  of  goods  within  the  time  can  properly  be  proved,  and  which 
agreed,  it  may  be  shown  in  rebuttal  would  certainly  have  been  real- 
that  plaintiff's  failure  to  deliver  ized  but  for  defendant's  default, 
as  agreed  was  due  to  defendant's  are  allowable  as  damages,  although 
own  breach.  Lam  v.  Earlington  the  amount  is  uncertain.  Wake- 


BREACH    OF   WARRANTY 


871 


rendering  it  inequitable,  as  between  the  parties,  to  hold  him 
responsible.94 

67.  Intermediate  Destruction  of  Thing  Sold. 

Under  an  executory  contract  of  sale,  the  presumption  is, 
in  the  absence  of. evidence  of  a  different  intent,  that  the 
parties  contemplated  the  continued  existence  of  the  thing 
sold,  until  the  time  for  delivery,  so  that  if  it  is  destroyed  by 
accident  before  delivery,  without  the  seller's  fault,  he  is  not 
liable  for  failure  to  fulfill.95 

V.  ACTIONS  AND  DEFENCES  ARISING  ON  BREACH 
OF  WARRANTY 

68.  Grounds  of  the  Action. 

For  a  false  warranty  the  action  may  be  either  on  con- 
tract or  for  deceit.96  If  warranty,  as  distinguished  from  a 
mere  representation,97  is  alleged  and  proved,  scienter  need 


man  v.  Wheeler  &  Wilson  Manuf. 
Co.,  101  N.  Y.  205,  4  N.  E.  Rep. 
264.  See  paragraph  85,  infra. 

94  Morrison  v.  Currie,  4  Duer,  79; 
and  cases  cited.    Where  the  vendee 
brings  an  action  for  damages  be- 
cause of  the  vendor's  failure  to  de- 
liver  goods   sold,    the   vendor   is 
entitled,  with  a  view  to  reducing 
the   damages,    to   show   that   the 
vendee  could  have  obtained  from 
a  third  party  goods  of  the  same 
kind  and  character  as  were  called 
for  by  the  contract  at  the  contract, 
price.     Saxe   v.    Penokee   Lumber 
Co.,  11  App.  Div.  (N.  Y.)  291. 

95  Dexter  v.  Norton,  47  N.  Y.  62, 
affi'g  55  Barb.  272.     Compare  52 
Id.  96. 

The  Sales  Act  (N.  Y.  Pers.  Prop. 
Law,  §  89)  apparently  has  not 
changed  the  rule  as  announced  in 
the  text.  Under  the  present  stat- 


ute it  has  been  held  that  where  a 
seller  agrees  to  deliver  certain 
goods,  part  of  which  are  destroyed 
by  fire,  he  is  obliged  to  deliver  the 
balance  undestroyed  no  matter 
how  expensive  it  may  be.  Inter- 
national Paper  Co.  v.  Rockefeller, 
161  N.  Y.  App.  Div.  180, 146  N.  Y. 
Supp.  371. 

96  Schuchardt  v.  Aliens,  1  Wall. 
368,  and  cases  cited. 

Some  jurisdictions  do  not  recog- 
nize the  right  to  rescind  for  mere 
breach  of  warranty  where  the  con- 
tract is  silent  upon  the  question 
and  there  has  been  no  fraud.  Dravo 
Doyle  Co.  v.  Sulzberger  &  Sons  Co., 
197  111.  App.  547.  Elliott  Supply 
Co.  v.  Johnson,  34  N.  D.  632,  159 
N.  W.  Rep.  2;  Rimmele  v.  Hueb- 
ner,  190  Mich.  247,  157  N.  W. 
Rep.  10. 

97  Quintard  v.  Newton,  5  Robt. 


872 


ACTIONS   AND    DEFENSES    ON 


not  be  averred,  nor  proved  if  averred ; 98  but  plaintiff  may 
recover  on  proof  of  the  false  warranty,  express  or  implied, 
if  alleged  as  his  cause  of  action,  although  allegations  of  fraud 
are  unproved."  If  the  complaint  is  so  framed  as  to  make 
fraud  the  cause  of  action,  a  warranty  being  alleged  as  the 
means  of  the  fraud,  the  warranty  should  be  proved;  l  and 
plaintiff  cannot  abandon  the  charge  of  fraud  and  recover 
on  mere  false  warranty.2  A  recovery  for  fraud  alone,  how- 
ever, may  be  sustained.3  If  the  complaint  sets  forth  only 
a  warranty,  recovery  for  fraud  alone  is  not  allowable.4 

69.  Pleading. 

Warranty,  if  relied  on,  must  be  alleged,5  even  though  it 
be  implied  by  law; 6  but,  under  an  allegation  not  stating 
whether  the  warranty  was  express  or  implied,  proof  of  either 
is  admissible,  and  sufficient.7  Evidence  of  a  warranty  is 
not  to  be  excluded  because  the  language  proved  does  not 


72.  The  fact  that  a  representation 
made  by  a  seller  was  false  raises 
no  presumption  that  he  knew  that 
it  was  false.  Southern  Develop- 
ment Co.  v.  Silva,  125  U.  S.  247. 

98  Schuchardt  v.  Aliens  (above) ; 
Case  v.  Boughton,  11  Wend.  106; 
Holman  v.  Dord,  12  Barb.  336. 

"Ledwich  v.  McKim,  53  N.  Y. 
307,  affi'g  35  Super.  Ct.  (J.  &  S.) 
304;  Ross  v.  Terry,  63  N.  Y.  613. 
Contra,  now  by  N.  Y.  Code  Civ. 
Pro.,  §  549.  Where,  in  an  action 
for  damages  for  breach  of  a  war- 
ranty in  the  sale  of  chattel  prop- 
erty the  petition  also  alleges  that 
the  defendant  knew  the  warranty 
to  be  false,  the  plaintiff,  upon  proof 
of  the  warranty  and  its  breach, 
may  recover  the  damages  to  him 
thereby  sustained,  though  he  fail 
to  prove  the  defendant's  knowl- 
edge of  the  falsity  of  the  war- 


ranty. Gartner  v.  Corwine,  57 
Oh.  St.  246,  48  N.  E.  Rep. 
945. 

1  Snell  v.   Moses,   1   Johns.   96; 
and  see  Perry  v.  Aaron,  Id.  129. 

2  Ross  v.  Mather,  51  N.  Y.  108, 
rev'g  47  Barb.  582. 

3  Indianapolis,  &c.  R.  R.  Co.  v. 
Tyng,  63  N.  Y.  653,  affi'g  2  Hun, 
311. 

4  Fisher  v.  Fredenhall,  21  Barb. 
82.     For   other   illustrations,   and 
the  reasons  of  these  distinctions, 
see   Chapter   XIV,   paragraph   7; 
Chapter    XV,    paragraph   2;    and 
paragraph  1  of  this  chapter. 

s  Diefendorff  v.  Gage,  7  Barb.  18; 
Merchants'  Nat,  Bank,  etc.,  v. 
Nees,  112  X.  E.  Rep.  (Ind.)  904. 

6  Prentice  v.  Dike,  6  Duer,  220. 

7  Hoe  v.  Sanborn,  21  N.  Y.  552; 
Hannum    v.    Richardson,    48    Vt. 
.508,  s.  c.  21  Am.  Rep.  152. 


BREACH    OF    WARRANTY  873 

strictly  follow  the  allegation; 8  and  if  there  be  a  substantial 
variance,  an  amendment  should  be  allowed,  unless  the  ad- 
verse party  has  been  misled  to  his  prejudice. 

70.  Warranty  of  Things  in  Action. 

On  a  transfer  of  negotiable  paper,  or  things  in  action,  for 
a  valuable  consideration,  there  is,  unless  circumstances 
raise  a  contrary  presumption,  an  implied  warranty,  not  only 
of  title,  but  of  genuineness,  and  that  there  is  no  defense 
arising  out  of  the  seller's  own  act,9  and  that  he  has  no  knowl- 
edge of  any  fact  which  makes  it  worthless,  such  as  usury,10 
payment,  insolvency  of  the  maker,11  &c.  There  is,  however, 
no  implied  warranty  as  to  legal  validity,  beyond  this.12 

71.  Warranty  of  Title. 

In  a  contract  to  sell,  or  a  sale,  there  is  an  implied  warranty 
on  the  part  of  the  seller  that  hi  case  of  a  sale  he  has  a  right 
to  sell  the  goods,  and  that  hi  case  of  a  contract  to  sell  he 
will  have  a  right  to  sell  the  goods  at  the  time  when  the  prop- 

8  Oneida   Manuf.  Soc.    v.    Law-          "  Brown    v.    Montgomery,    20 
rence,   4   Cow.   440;   Hastings   v.      N.  Y.  287. 

Levering,    2    Pick.    214.      Contra,  12  The  authorities  are  not  agreed. 

Summers  v.  Vaughan,  35  Ind.  323,  Compare  Ross  v.  Terry,  63  N.  Y. 

s.  c.,  9  Am.  Rep.  741.  615;  and  Otis  v.  Cuilom,  92  U.  S. 

9  Delaware   Bank   v.   Jarvis,   20  (2  Otto)  447.      According  to  the 
N.  Y.  226.  latter  case,  the  only  liability,  ex 

A  purchaser  of  goods  has  no  contractu,  is  for  title  and  genuine- 
action  for  breach  of  warranty  ness;  and  any  other  liability  is  in 
against  a  bank  holding  a  draft  tort  for  bad  faith.  On  an  assign- 
for  the  purchase  price,  with  non-  ment  of  a  judgment  for  value, 
negotiable  bill  of  lading  attached,  without  disclosing  payments,  there 
where  the  bank  received  the  same  is  an  implied  warranty  that  it  is 
from  the  seller  and  gave  credit  unpaid.  Furniss  v.  Ferguson,  15 
therefor.  American  Nat.  Bank  v.  N.  Y.  437;  34  Id.  485;  but  not 
Warren,  96  Misc.  Rep.  265,  160  that  it  will  not  be  reversed.  Glass 
N.  Y.  Supp.  413.  See  Neg.  Inst.  v.  Reed,  2  Dana  (Ky.),  168.  See 
Law  (N.  Y.  Cons.  Laws),  §  115.  Neg.  Inst.  Law  (N.  Y.  Cons.  Laws), 

">  Fake  v.  Smith,  7  Abb.  Pr.  N.  S.  §  1 15. 
106. 


874 


ACTIONS   AND    DEFENSES    ON 


ert-y  is  to  pass.13    It  is  otherwise  where  the  circumstances 
are  such  as  to  give  rise  to  a  contrary  presumption.14-15 

72.  Express  Warranty. 

To  constitute  an  express  warranty,  there  must  be  some 
expression  by  the  seller  amounting  to  an  unequivocal  af- 
firmation, relied  on  by  the  buyer,  that  the  goods  are  of  some 
certain  quality.  It  is  not  enough  to  prove  mere  expressions 
of  opinion. 16  But  it  is  not  necessary  that  the  word  ' '  warrant ' ' 
should  be  used.  Any  affirmation  amounting  to  it  is  suffi- 
cient.17 No  particular  phraseology  is  necessary.  Any  dis- 


"Pers.  Prop.  L.  (N.  Y.  Cons. 
Laws),  §  94.  Prior  to  the  Sales 
Act  a  warranty  of  title  was  implied 
only  where  the  seller  was  in  pos- 
session of  the  goods.  In  Scranton 
r.  Clark,  39  N.  Y.  220,  224,  it 
was  said:  "...  If  the  property 
sold  be  at  the  time  of  the  sale  in 
the  possession  of  a  third  party,  and 
there  be  no  affirmation  or  assertion 
of  ownership,  no  warranty  of  title 
will  be  implied.  In  these  cir- 
cumstances, in  order  to  attach 
any  liability  to  the  vendor  upon 
a  sale,  there  must  be  an  affirmation 
which  will  amount  to  a  warranty 
of  the  title." 

14-is  AS  where  the  seller  merely 
sells  such  right  as  he  has,  without 
either  having  or  undertaking  to 
give  actual  or  constructive  pos- 
session, Id.;  or  is  a  pawnbroker, 
selling  unredeemed  pledges.  More- 
ley  v.  Attenborough,  3  Exch.  500. 

16Swett  v.  Colgate,  20  Johns. 
196,  1825;  Oneida  Manuf.  Soc.  v. 
Lawrence,  4  Cow.  440;  Martin  v. 
Shoub,  113  N.  E.  Rep.  (Ind.  App.) 
384;  Alexander  ?-.  Stone,  29  Cal. 
App.  488,  156  Pac.  Rep.  998. 

The  Sales  Act,   Pers.   Prop.   L. 


(N.  Y.  Cons.  Laws),  §  93,  defines 
an  express  warranty  as  follows: 
"Any  affirmation  of  fact  or  any 
promise  by  the  seller  relating  to 
the  goods  is  an  express  warranty 
if  the  natural  tendency  of  such 
affirmation  or  promise  is  to  induce 
the  buyer  to  purchase  the  goods, 
and  if  the  buyer  purchases  the 
goods  relying  thereon.  No  affirma- 
tion of  the  value  of  the  goods, 
nor  any  statement  purporting  to 
be  a  statement  of  the  seller's  opin- 
ion only  shall  be  construed  as  a 
warranty." 

"It  is  elementary  that,  in  order 
to  entitle  the  plaintiff  to  maintain 
an  action  for  breach  of  an  express 
warranty,  it  must  be  established 
that  the  warranty  was  relied  on." 
Crocker-Wheeler  Electric  Co.  v. 
Johns-Pratt  Co.,  29  App.  Div.  300, 
302,  51  N.  Y.  Supp.  793,  aff'd  164 
N.  Y.  593,  58  N.  E.  Rep.  1086. 

17  Whitney  v.  Sutton,  10  Wend. 
412,  1835;  Cook  v.  Mosely,  13  Id. 
277;  Wilbur  v.  Cartwright,  44 
Barb.  536;  Wells  v.  Selwood,  61 
Id.  238. 

A  statement  by  the  vendor  that 
he  was  selling  the  goods  "to  the 


BREACH    OF    WARRANTY 


875 


tinct  assertion  of  the  quality  of  the  thing,  made  by  the  seller 
as  an  inducement  to  purchase,  and  relied  on  by  the  buyer, 
may  be  ground  for  finding  a  warranty.18  Evasive  or  equiv- 
ocal language  may  be  left  to  the  jury,  to  determine  whether 
it  was  intended  to  be  understood  as  a  warranty  or  affirma- 
tive representation.19  Any  positive  affirmation,  understood 
and  relied  on  by  the  buyer,  is  a  warranty,  or,  at  least,  evi- 
dence to  go  to  the  jury.20  The  description  of  the  goods,  in 
a  bought  and  sold  note,  advertisement,  bill  of  parcels,  in- 
voice, or  in  an  oral  assurance  to  the  buyer,  is  evidence  of  a 
warranty.21 

If  the  words  used  were  such  as  might  have  been  under- 
stood and  intended  by  the  parties  as  a  warranty,  the  ques- 
tion whether  they  actually  were,  is  a  question  of  fact  for  the 
jury.22  If  the  contract  be  in  words  clearly  constituting  a 
warranty,  the  seller  cannot  avoid  it  by  evidence  that  he  did 
not  intend  to  be  understood  as  intending  what  his  language 
declares.23 


best  house  in  the  city,"  is  no 
warranty.  Wasserstrom  v.  Cohen, 
165  X.  Y.  App.  Div.  171, 150  N.  Y. 
Supp.  638. 

18  Chapman  r.  Murch,  19  Johns. 
290;  Gallagher  v.  Waring,  9  Wend. 
20;  Mason  v.  Crabtree,  186  S.  W. 
Rep.  (Mo.  App.)  553;  Peterson  v. 
Denny-Renton  Clay  &  Coal  Co., 
89  Wash.  141,  154  Pac.  Rep.  123. 
(Brick  sold   as   "highway  paving 
brick,"  held  subject  to  a  warranty 
that  it  would  be  highway  paving 
brick.) 

19  See,    for    instance,    Cook    o. 
Mosely,   13  Wend.  277;  Burge  v. 
Stroberg,  42  Geo.  88. 

20  Hawkins    v.     Pemberton,    51 
X.  Y.  198,  rev'g  6  Robt.  42,  and 
modifying    earlier    cases.      Loper 
T.  Lingo,  97  Atl.  Rep.  (Del.)  585. 

21  Id.;    Wolcott    i\     Mount,    9 


Vroom,  X.  J.  496,  s.  c.,  20  Am. 
Rep.  425,  affi'g  13  Am.  Rep.  438; 
Bounce  v.  Dow,  64  N.  Y.  16,  rev'g 
6  Supm.  Ct.  (T.  &  C.)  653.  So 
of  an  order  for  a  specified  kind  of 
goods,  followed  by  delivery  of  a 
thing  as  such.  White  v.  Miller,  7 
Hun,  427.  See  Purity  Ice  Co.  v. 
Hawley  Down  Draft  Furnace  Co., 
22  App.  (D.  C.)  573  (dictum). 

22  Duff ee  v.  Mason,  8  Cow.  25; 
Whitney  v.  Sutton,  10  Wend.  412; 
Blakeman-0.  McKay,  1  Hilt.  266; 
Hawkins  v.  Pemberton,  51  N.  Y. 
198,  rev'g  6  Robt.  42. 

23  Hawkins    v.     Pemberton,    51 
N.  Y.  198,  rev'g  6  Robt.  42;  Fair- 
bank  Canning  Co.  v.  Metzger,  118 
X.  Y.  260,  23  N.  E.  Rep.  372,  16 
Am.  St.  Rep.  753. 

Xeither  can  the  purchaser  ex- 
tend the  effect  of  an  express  war- 


876  ACTIONS   AND    DEFENSES    ON 

Where  the  sale  was  oral,  evidence  of  everything  that  took 
place  between  the  parties,  upon  the  subject,  before  and  at 
its  final  completion,  is  competent.24  If  the  warranty  relied 
on  was  made  after  the  seller  had  completed  the  sale,  so  that 
the  consideration  already  given  had  been  exhausted  by  a 
transfer  without  warranty,  a  new  consideration  must  be 
proved.23 

Upon  a  sale  with  express  warranty,  whether  the  sale  be 
executed  or  executory,  the  buyer  is  not  bound  to  rescind 
and  return,  on  discovering  a  breach,26  but  hi  such  case  clearer 
proof  of  breach  is  required  than  if  he  did  return  the  thing.27 
In  respect  to  defects  that  were  not  open  and  visible,  the 
buyer,  with  express  warranty,  is  not  bound  to  prove  that 
he  applied  tests  before  consuming  it  in  use.28 

73.  Agent's  Authority  to  Warrant. 

Evidence  of  authority  conferred  on  an  agent,  general  or 
special,29  or  a  broker,30  to  sell  (restrictions  not  appearing), 
raises  a  legal  presumption  of  authority  to  warrant.  Other- 

ranty  by  parol  evidence.     Colt  v.  29  Schuchardt  v.  Aliens,  1  Wall. 

Demarest  &  Co.,  159  N.  Y.  App.  369,  and  cases  cited. 

Div.  394, 144  N.  Y.  Supp.  557.  The    provisions    of    a    seller's 

24  Pierson  v.  Hoag,  47  Barb.  243;  printed  order  form  to  the  effect 
Cunningham  v.  Parks,  97  Mass.  172.  that  no  warranties  had  been  made 

25  Summers  v.  Vaughan,  35  Ind.  by   the   salesman   which   are   not 
323,  s.  c.,  9  Am.  Rep.  741.  expressly  stated  in  the  order,  war- 

26  Day  v.  Pool,  52  N.  Y.  416,  rants  an  inference  that  the  sales- 
affi'g  63  Barb.  506;  Ross  v.  Terry,  man  is  authorized  to  change  the 
63  N.  Y.  613.  contract    by    making    representa- 

27  Day  v.  Pool  (above).  tions  not  expressed  therein.    King 
28Dounce  v.  Dow,  57  N.  Y.  16,      v.    Edward    Thompson    Co.,    56 

rev'g  6  Supm.  Ct.  (T.  &  C.)  653;  Ind.  App.  274,  104  N.  E.  Rep.  106. 
Gautier  v.  Douglass  M'fg  Co.,  13  But  see  Fulton  v.  Sword  Medi- 
Hun,  514.  cine  Co.,  145  Ala.  331,  40  So.  Rep. 
But  one  who  purchases  goods  for  393,  holding  that  such  a  provision 
resale  is  under  an  obligation  to  test  shows  "that  the  agent  has  no  au- 
the  goods  before  using  them  and  thority  to  make  any  verbal  agree- 
to  reject  them  if  found  unmer-  ments  varying  the  terms  of  the 
chantable.  Leiter  v.  Innis,  138  written  contract." 
N.  Y.  Supp.  536.  30  Nelson  v.  Cowing,  6  Hill,  336. 


BREACH    OF   WARRANTY 


877 


wise  of  a  mere  servant.31  But  the  presumed  authority  is 
not  to  be  stretched  to  unusual  warranties.32  Evidence  of 
the  usage  of  the  trade  is  admissible  as  one  means  of  defining 
the  scope  of  the  apparent  authority  of  the  agent  or  broker.33 
If  there  was  neither  express  nor  implied  authority,  it  is  not 
enough  to  show  that  the  principal  received  and  retained 
the  price,  without  showing  that  he  knew  of  the  unauthorized 
warranty.34 

74.  Implied  Warranty  on  an  Executed  Sale. 

An  executed  sale  of  chattels — that  is,  a  sale  executed  when 
made — does  not  of  itself  imply  any  warranty  of  quality. 
To  establish  such  an  implied  warranty  under  the  Sales  Act 
there  must  be  evidence  of  circumstances  not  ordinarily  essen- 
tial to  sale,  which  afford  ground  for  presuming  a  warranty 
to  have  been  within  the  intention  of  the  parties.35  An  im- 


31Woodin  v.  Burford,  2  Cr.  & 
M.  391.  Persons  executing  a 
contract  of  sale  as  apparent  prin- 
cipals will  not  be  permitted  to 
show  by  parol  evidence  that  they 
were  acting  as  agents  of  another, 
when  sued  on  a  warranty  implied 
by  such  contract.  Bulwinkle  v. 
Cramer,  27  S.  C.  376,  13  Am.  St. 
Rep.  645,  3  S.  E.  Rep.  776. 

32  Smith  v.  Tracy,  36  N.  Y.  79, 
2  Greenl.  Ev.,  13th  ed.  50  n. 

"An  agent  employed  to  sell, 
without  express  power  to  warrant, 
cannot  give  a  warranty  which 
shall  bind  the  principal,  unless 
the  sale  is1  one  which  is  usually 
attended  with  warranty."  Smith 
v.  Tracy,  36  X.  Y.  79. 

33  2  Whart.  Ev.,  §  967.     Contra, 
Dodd  v.  Farlow,  11  Allen,  421. 

An  agent's  authority  to  warrant 
may  be  proved  in  one  of  two  ways, 
viz :  by  evidence  that  it  is  the  usual 


custom  for  an  agent  to  warrant 
such  goods,  or  by  proof  of  express 
authority.  Cafre  v.  Lockwood, 
22  N.  Y.  App.  Div.  11,  47  N.  Y. 
Supp.  916. 

34  Smith  ».  Tracy,  36  N.  Y.  79. 
Compare  Brower  v.  Lewis,  19 
Barb.  574;  Sweet  ».  Bradley,  24 
Id.  549. 

35Pers.  Prop.  L.  (N.  Y.  Cons. 
Laws) ,  §  96.  See  Readhead  v.  Mid- 
land R.  Co.,  L.  R.  4  Q.  B.  379, 
5  E.  R.  C.  436;  Bywater  v.  Richard- 
son, 1  A.  &  E.  508,  28  E.  C.  L.  246, 
110  Reprint,  1301;  Dravo  Doyle 
Co.  v.  Sulzberger  &  Sons  Co., 
197  111.  App.  547;  International 
Harvester  Co.  v.  Law,  105  S.  C. 
520,  90  S.  E.  Rep.  186;  Glover 
Mach.  Works  v.  Cooke-Jellico  Coal 
Co.,  173  Ky.  675,  191  S.  W.  Rep. 
516;  Slinger  v.  Totten,  160  N.  W. 
Rep.  (S.  D.)  1008. 


878 


ACTIONS   AND    DEFENSES   ON 


plied  warranty  or  condition  as  to  quality  or  fitness  for  a 
particular  purpose  may  be  annexed  by  the  usage  of  trade.36 
Evidence  that  the  buyer's  purpose  was  communicated,  does 
not  alone  rise  an  implied  warranty  that  the  thing  was  fit, 
for  the  purpose,37  for  it  is  enough  if  the  known,  defined, 
described  thing  bought,  was  delivered.38  Neither  the  si- 
lence of  the  seller  at  the  tune  of  sale,39  nor  the  fact  that  a 
sound  price  was  paid,40  will  alone  imply  a  warranty.  But 
if  the  article  was  contracted  to  be  furnished  for  a  particular 
use,  and  it  appears  that  the  buyer  relies  on  the  seller's  skill 
or  judgment,  there  is  an  implied  warranty  that  it  should  be 
suited  for  that  use.41 

The  exposure  or  offer  of  goods  for  sale  by  a  manufacturer 
as  being  of  his  build  or  workmanship  (whether  truly  so  or 


36Pers.  Prop.  L.  (N.  Y.  Cons. 
Laws),  §96,  sub.  5.  The  Sales 
Act  seems  to  change  the  common 
law  of  New  York  on  this  point. 
See  Beirne  v.  Dord,  5  N.  Y.  95, 
102,  103,  55  Am.  D.  321,  where  it 
is  stated  that  a  warrant}7  "cannot 
be  established  by  proof  that  it 
was  a  general  custom  or  usage 
of  persons  dealing  in  the  article 
thus  to  contract." 

37  Crogate's  Case,  1  Sm.  L.  Gas. 
247,  250;  Jones  «.  Just,  L.  R.  3  Q. 
B.   197;  Bartlett  v.  Hoppock,  34 
N.  Y.  118.    But  see,  Lichtenthaler 
v.  Samson  Iron  Works,   162  Pac. 
Rep.  (Cal.  App.)  441. 

38  See  Bounce  v.  Dow,  64  N.  Y. 
416;    Perine    Machinery    Co.    v. 
Buck,  90  Wash.  344,  156  Pac.  Rep. 
20,  Ann.  Cas.  1917,  C.  341;  Gen- 
eral Electric  Co.  v.  United  States, 
50  Ct.  Cl.  287;  City  &  S.  Ry.  Co. 
«.  Basshor,  82  Md.  397,  406,  33 
Atl.  Rep.  635. 

'"Caley's  Case,  1  Sm.  L.  Cas. 
241,  243. 


*»  Wright  v.  Hart,  18  Wend.  449, 
affi'g  17  Id.  267. 

41  Pers.  Prop.  Law  (N.  Y.  Cons. 
Laws),  §  96,  sub.  1.  Under  the 
common  law  of  New  York,  a  war- 
ranty of  fitness  for  purpose  was 
implied  only  where  the  seller  was 
the  manufacturer  or  grower  of  the 
goods.  See  Bartlett  v.  Happock, 
34  N.  Y.  118,  88  Am.  D.  428; 
White  v.  Miller,  71  N.  Y.  118,  27 
Am.  Rep.  13.  Under  the  Sales 
Act  the  warranty  may  be  implied 
irrespective  of  whether  the  seller  is 
a  grower  or  manufacturer  or  not. 
The  following  cases  have  con- 
strued this  section  of  the  Sales 
Act.  Marx  v.  Locomobile  Co.  of 
America,  82  Misc.  468,  144  N. 
Y.  Supp.  937;  G.  B.  Shearer 
Co.  v.  Kakoulis,  144  N.  Y. 
Supp.  1077;  Bonwitt  Teller 
v.  Kinlen,  165  N.  Y.  App.  Div. 
351,  150  N.  Y.  Supp.  966;  Mon- 
roe v.  Arthond,  186  S.  W.  Rep. 
(Mo.  A.)  554. 


BREACH    OF   WARRANTY 


879 


not),  implies  a  warranty  or  representation  that  they  are 
made  properly,  and  that  the  fault,  if  any,  is  a  latent  one, 
arising  from  causes  which  he  could  not  control.42  Hence 
even  on  an  executed  sale  by  one  assuming  to  be  the  maker, 
he  is  liable  upon  an  implied  warranty  that  the  article  is  free 
from  any  defect  produced  by  the  manufacturing  process 
itself.43  Where  the  defect  in  the  article  arises  from  a  defect 
in  the  materials  employed,  the  warranty  is  implied,  for  the 
same  reason,  only  where  he  is  shown,  or  may  be  presumed 
to  have  known,  the  defect.44 

In  the  case  of  provisions,  for  human  food,  there  is  an  im- 
plied warranty  that  they  are  sound  and  wholesome,  if  they 
are  sold  for  domestic  consumption,45  but  not  if  they 
are  sold  as  merchandise,  and  not  for  immediate  domestic 
use. 

Where  there  is  no  other  liability  as  to  quality,  none  is 


42  Chandelor  v.  Lopus,  1  Sm.  L. 
Gas.  299,  316.    A  purchaser,  hav- 
ing waived  all  warranties,  express 
or    implied,    cannot    recover    for 
latent  defects.    Daniel  r.  Burson,  18 
Ga.  A.  25, 88  S.  E.  Rep.  745. 

43  Hoe   v.    Sanborn,    21    N.    Y. 
552.     Compare  Beck  v.  Sheldon, 
48  N.  Y.  365;  Bartlett  v.  Hoppock, 
34  N.  Y.  118. 

44  Hoe  v.  Sanborn,  21  N.  Y.  552. 
Compare  Beck  v.  Sheldon,  48  N.  Y. 
365;  Bartlett  v.  Hoppock,  34  N.  Y. 
118. 

By  the  insertion  in  the  Sales 
Act  of  the  words:  "Whether  he 
be  the  grower  or  manufacturer 
or  not"  the  distinction  formerly 
existing  between  growers  and  man- 
ufacturers and  other  dealers  has 
been  done  away  with.  Pers.  Prop. 
L.  (X.  Y.  Cons.  Laws),  §  96,  sub.  1 
and  2. 

45  Van    Bracklin    v.    Fonda,    12 


Johns.  468;  Jones  v.  Murray,  3 
Monr.  (Ky.)  83;  Moses  v.  Mead, 
5  Den.  617;  and  see  Divine  v. 
McCormick,  50  Barb.  116;  Fless- 
her  v.  Carstens  Packing  Co.,  93 
Wash.  48,  160  Pac.  Rep.  14;  D. 
Rosenbaum's  Sons  v.  Davis,  etc., 
Co.,  Ill  Miss.  278,  71  So.  Rep.  388; 
Race  v.  Krum,  163  N.  Y.  App.  Div. 
924,  147  N.  Y.  Supp.  818  (ice 
cream  purchased  from  a  dealer  for 
consumption);  Leahy  v.  Essex  Co., 
164  N.  Y.  App.  Div.  903,  148 
N.  Y.  Supp.  1063  (chocolate  pie 
purchased  as  food);  Rinaldi  v. 
Mohican  Co.,  171  App.  Div.  814, 
157  N.  Y.  Supp.  561  (sale  of  pork 
by  retail  dealer,  who  was  held 
liable  although  he  sold  the  pork 
in  the  same  package  in  which  he 
received  it  and  although  it  bore 
the  stamp  of  the  United  States 
Government  inspector  that  it  was 
sound  and  wholesome). 


880  ACTIONS   AND    DEFENSES    ON 

implied  from  a  warranty  of  quantity;  but  the  quantity  is 
made  up  by  unsound  and  sound  together.46 

In  aid  of  evidence  of  an  implied  warranty,  the  buyer  may 
testify  to  the  fact  that  he  purchased  relying  on  the  existence 
of  the  supposed  quality.47 

Where  the  warranty  is  an  implied  one,  or  the  breach  is  a 
condition  of  the  sale,  as  distinguished  from  a  warranty,  re- 
taining the  article  after  opportunity  to  ascertain  the  defect 
raises  a  presumption  of  acquiescence  in  the  quality,48  which 
is  usually  conclusive,  unless  induced  by  fraud.49  If  fraud- 
ulent acts  inducing  acceptance  are  alleged,  and  proved,  it 
is  no  objection  that  other  such  acts  also  alleged  remain  un- 
proved.50 

75.  -  -  on  Sale  Partly  or  Wholly  Executory. 

An  executory  contract,  unless  the  circumstances  indicate 
a  different  intent,  implies  a  warranty  that  the  thing  delivered 
shall  be  of  such  quality  as  to  be  merchantable  or  salable — 
that  is,  at  least  of  medium  quality  or  goodness.51 

46  Jones  v.  Murray,  3  Monr.  (Ky.)  49  Dutchess  Co.  v.  Harding,  49 
83.  N.  Y.  324. 

47  Ross    -v.    Terry,    63    N.    Y.  At  common  law  iu  New  York  an 
615.  implied  warranty  did  not  survive 

48  Reed  v.  Randall,  29  N.  Y.  358;  acceptance,    but   under   the   Uni- 
Purcell  v.  International  Harvester  form  Sales  Act,  acceptance  of  the 
Co.  of  America,  37  S.  D.  517,  159  goods  does  not  terminate  a  vendor's 
N.    W.    Rep.    47;    Glover   Mach.  liability  for  breach  of  an  implied 
Works   v.   Cooke-Jellico   Co.,   173  warranty,    provided    the    vendee 
Ky.  675,  191  S.  W.  Rep.  516.  notifies  him  of  the  defect  within  a 

It    has    been    held    that   where  reasonable   time.     Regina   Co.   v. 

an    article    was    sold    under    cir-  Gately  Furniture  Co.,  171  N.  Y. 

cumstances  giving  rise  to  an  im-  App.  Div.  817,  157  N.  Y.  Supp. 

plied  warranty  of  fitness  for  the  746. 
purpose,    and   the   article   proved          50  Id. 

worthless    for    any    purpose,    the          &1  Howard   v.   Hoey,   23   Wend, 

buyer  may  defeat  recovery  of  the  350;  J.  B.  Madsen  &  Co.  v.  Ho- 

purchase    price,    though    he    did  gans,  189  111.  App.  589;  Renaud  v. 

not  return  the  article.    Monroe  r.  Peck,  2  Hilt.  137;  Lawton  v.  Kiel, 

Arthaud,   186  S.  W.   Rep.    (Mo.)  61   Barb.  558;  Hamilton  v.  Gan- 

554.  yard,  2  Abb.  Ct  App.  Dec.  314, 


BREACH    OF   WARRANTY  881 

76.  Sale  by  Sample. 

The  mere  exhibition  of  a  sample  at  the  time  of  sale  is  not 
evidence  of  a  sale  by  sample;  it  is  evidence  only  of  a  repre- 
sentation that  the  sample  has  been  taken  from  the  bulk  in 
the  usual  way.52  If  such  a  sale  was  not  expressly  agreed  to 
be  by  sample,  it  is  a  question  of  intent  whether  it  was  a  sale 
by  sample.53  When  the  contract  is  in  writing,  and  nothing 
therein  indicates  that  a  sample  was  used  or  referred  to,  parol 
evidence  is  not  admissible  to  show  a  sale  by  sample.54 

A  sale,  though  evidenced  by  a  bill  of  parcels,55  or  a  bought 
and  sold  note,56  not  referring  to  a  sample,  may  be  shown  by 
parol  to  have  been  by  sample,  especially  if  the  designation 
hi  the  writing  is  not  a  sufficient  description;  57  and  evidence 
of  the  usage  of  the  trade  to  make  all  such  sales  by  sample, 
is  competent  for  this  purpose.58  But  if  the  circumstances 
of  the  sale  are  such  that  there  was  no  express  warranty,  and 
the  law  does  not  imply  one,  a  warranty  cannot  be  established 
(even  to  the  extent  of  conformity  to  samples  exhibited),  by 
mere  proof  of  a  usage  of  the  trade  to  contract,  with  such 
warranty,  in  the  manner  proven.59  Whether  the  sale  was 

affi'g    34    Barb.    204.      Compare  Cal.  327,  23  Am.   St.   Rep.  469; 

Chandelor  v.  Lopus,  1  Sm.  L.  Gas.  26  Pac.  Rep.  830. 

299,  318  [251].  55  Bradford  v.  Manly,  13  Mass. 

52  Waring  v.   Mason,   18  Wend.  139. 

425,  434;  Hargous  v.  Stone,  5  N.  Y.          56  Boorman  v.  Jenkins,  12  Wend. 

85,    90;    Henry    v.    Talcott,    175  566,  18  Id.  435;  Koop  v.  Handy,  41 

N.     Y.    385,     67     N.     E.    Rep.  Barb.  454. 
617.  "Pike  u.  pay,  101  Mass.   134. 

53  Waring  v.  Mason  (above).  Otherwise  under  special  contract. 
"Even  if  the  word  'sample'  is  Thomas  v.  Hunt,  4  Abb.  Ct.  App. 

used  in  a  written  order  for  goods  Dec.  416. 

to  be  manufactured,  the  sale  is  not  58  Syers     v.     Jonas,     2     Exch. 

by  sample  if  the   order   contains  111. 

minute  specifications  and  descrip-  59  Beirne  v.  Dord,  5  N.  Y.  102. 

tions,   involving   a   great   tiumber  See    Greenwood    Cotton    Mill    v. 

of  changes,  variations  and  differ-  Tolbert,  105  S.  C.  273,  89  S.  E. 

ences   between   the   article   to   be  Rep.  653,  Ann.  Cas.,  1917,  C.  338; 

made    and    the    sample    shown."  Robert    McLane    Co.    r.    Swerne- 

Henry  v.  Talcott  (supra).  mann  &  Schkade,  189  S.  W.  Rep. 

"Harrison    v.    McCormick,    89  (Tex.  Civ.  App.)  282;  Regina  Co. 


882  ACTIONS   AND    DEFENSES   ON 

« 

by  sample  or  not,  is  a  question  of  fact,  on  which  evidence 
of  usage  is  competent;  but  the  liability  resulting  is  a  ques- 
tion of  law,  on  which  usage  can  have  no  weight.  But  no 
usage  can  be  sustained  in  opposition  to  the  established 
principles  of  law,  so  as  to  make  the  seller  of  manufactured 
goods,  by  sample,  liable  to  the  purchaser  for  damages  occa- 
sioned by  latent  defects  in  the  goods  sold,  not  discoverable 
either  in  them  or  the  sample  by  ordinary  care.60  Sale  by 
sample,  and  warranty  may  both  be  proved,  and  one  does 
not  necessarily  merge  or  supersede  the  other.61  Sale  by 
sample  is  only  one  kind  of  warranty,  and  does  not  preclude 
others. 

To  have  the  effect  of  proving  sale  by  sample,  the  evidence 
must  show  that  the  parties  mutually  understood  that  they 
were  dealing  with  the  sample  upon  an  agreement  on  the  part 
of  the  seller  that  the  bulk  of  the  commodity  corresponded 
with  the  sample.62  If  the  sale  is  by  agent,  in  the  ordinary 
course  of  trade,  special  authority  to  use  a  sample,  or  other- 

v.  Gately  Furniture  Co.,  171  N.  Y.  that  intent  should  be  shown.  A 
App.  Div.  817,  157  N.  Y.  Supp.  contract  for  the  manufacture  and 
746.  delivery  of  wrenches  to  be  made 
60  Randall  v.  Smith,  63  Me.  105,  in  a  first  class  manner  and  "in 
s.  c.,  18  Am.  Rep.  200,  and  cases  every  way  equal  to  a  model,"  is 
cited,  s.  P.,  Barnard  v.  Kellogg,  10  not  a  sale  by  sample.  Ideal  Wrench 
Wall.  383.  Co.  v.  Garvin  Mach.  Co.,  92  N.  Y. 
81  Murray  v.  Smith,  4  Daly,  273;  App.  Div.  187,  87  X.  Y.  Supp.  41, 
and  see  Sands  v.  Taylor,  5  Johns,  aff'd  181  N.  Y.  573,  74  N.  E.  Rep. 
410;  but  a  written  agreement  of  1118.  See  also  Smith  v.  Coe,  170 
sale  may  exclude  oral  evidence  of  N.  Y.  162,  63  N.  E.  Rep.  57.  But 
warranty.  it  has  been  held  that  "a  contract 
62  Beirne  v.  Dord,  5  N.  Y.  95;  of  sale  which  points  out  a  known 
Robert  McLane  Co.  v.  Swerne-  and  ascertainable  standard  by 
mann  &  Schkade,  189  S.  W.  Rep.  which  to  judge  the  quality  of 
(Tex.  Civ.  App.)  282.  goods  sold,  is,  for  all  practical  pur- 
See  Pers.  Prop.  L.  (N.  Y.  Cons.  poses,  a  sale  by  sample,  and  ren- 
Laws),  §  97  for  implied  warranties  ders  the  vendor  liable  for  damages 
on  sales  by  sample.  It  will  be  upon  a  breach  of  warranty,  al- 
seen  that  the  Sales  Act  does  not  though  there  has  been  an  accept - 
affect  the  pre-existing  rules  of  law  ance  after  opportunity  to  inspect 
with  respect  to  the  requirement  the  goods."  Zabriskie  v.  Central 


BREACH    OF    WARRANTY 


883 


wise  warrant,  need  not  be  proved,  even  though  the  agency 
be  special.63 

77.  Presumption  of  Knowledge. 

The  law  presumes  that  every  dealer  in  articles  brought 
to  market  is  acquainted  with  all  the  circumstances,  such  as 
tendencies  to  deterioration,  usually64  attendant  on  cargoes 
composed  of  those  articles;  but  a  mere  dealer  is  not  pre- 
sumed to  know  the  precise  quality  of  goods  of  a  particular 
brand.65 

78.  Parol  Evidence  of  Warranty  on  Written  Sale. 

If  the  parties  have  reduced  their  contract  to  writing,  the 
instrument  cannot  be  varied  by  oral  evidence  of  a  warranty 66 
or  representation 67  not  expressed  or  implied  in  the  writing,68 


Vermont  R.  R.  Co.,  131  N.  Y.  72, 
29  N.  E.  Rep.  1006. 

63  Andrews  v.  Kneeland,  6  Cow. 
354;  see  also  Boorman  v.  Jenkins, 
12  Wend.  572. 

64  Hargous  v.  Stone,  5  N.  Y.  94. 

65  Bounce  v.  Dow,  57  N.  Y.  16, 
rev'g  6  Supm.  Ct,  (T.  &  C.)  653. 

Probably  this  distinction  be- 
tween dealers  bringing  articles  to 
market,  and  "mere  dealers,"  has 
been  affected  by  the  provisions  of 
the  Sales  Act.  See  note  44,  para- 
graph 74. 

66  Dean  v.  Mason,  4  Conn.  428; 
De  Witt  v.  Berry,  134  U.  S.  306, 
312;  Wheaton  Roller-Mill  Co.   v. 
Xoye  Manuf.  Co.,  66  Minn.  156, 
68  N.  W.  Rep.  854;  Van  Ostrand 
?'.  Reed,   1   Wend.  424;  Lamb  v. 
Crafts,  12  Met.  353;  Reed  v.  Wood, 
9  Vt.  285.    And  see,  Anderson  v. 
Merchants'  Grocery  Co.,  99  S.  C. 
383,  84  S.  E.  Rep.  109. 

87  Rice  v.  Forsyth,  41  Md.  389; 
King  r.  Edward  Thompson  Co.,  56 


Ind.   App.   274,   282,    104   N.   E., 
Rep.  106. 

68  Pickering  ».  Dowson,  4  Taunt. 
779,  Benj.  on  S.,  §  621.  But  com- 
pare paragraph  9.  So  held  of  a 
bill  of  sale,  Mumford  v.  McPherson, 
1  Johns.  414;  Pender  v.  Forbes,  1 
Dev.  &  B.  250;  Sparks  r.  Messick, 
65  N.  Car.  440;  of  an  assignment  of 
a  patent  right,  Van  Ostrand  i: 
Reed,  1  Wend.  424;  Rose  v.  Hurley, 
39  Ind.  77,  of  a  letter,  Whitmore 
v.  South  Boston  Iron  Co.,  2  Allen, 
52,  s.  c.,  1  Am.  L.  Reg.  N.  S.  403; 
and  of  the  printed  conditions  of 
sale  subscribed  by  the  auctioneer, 
Powell  v.  Edmunds,  12  East,  6. 
Otherwise  of  unsigned  conditions. 
Eden  v.  Blake,  13  Mees.  &  W.  614. 
Where  the  sale  was  not  in  writing, 
a  warranty  may  be  proved,  though 
made  during  negotiations,  some 
days  before  the  sale.  Wilmot  v. 
Kurd,  11  Wend.  584. 

Xo  implied  warranty  can  be 
read  into  a  written  contract  or 


SS4 


ACTIONS   AND    DEFENSES   ON 


unless  fraud  be  shown,69  nor  can  the  warranty  be  established 
by  extrinsic  written  evidence  of  a  prior  representation,  such 
as  the  letters  of  negotiation,70  or  the  advertisement  of  sale.71 
The  writing  may  be  deemed  to  contain  the  whole  contract.72 
But  this  rule  is  greatly  limited,  where  the  statute  of  frauds 
does  not  require  a  writing,73  and  the  instrument  is  one  which 
does  not  purport  to  embody  all  the  terms  of  the  contract.74 
A  bill  of  parcels,  or  sold  note,  given  apparently  as  a  receipt 
for  the  price,75  or  an  invoice  made  out  by  the  seller  after  an 
oral  warranty,76  is  not  a  contract  within  the  rule,  and  does 

taken  in  connection  with  it,  if  its  A  written  warranty  cannot  be 
effect  would  be  to  contradict  or  enlarged  by  proof  of  oral  war- 
vary  the  expressed  terms  and  con- 
ditions of  the  contract.  Where, 
however,  the  warranty  has  no  such 
effect  upon  the  terms  of  the  con- 
tract, it  may  be  implied  from  evi- 
dence of  the  surrounding  circum- 
stances. Lidgerwood  Mfg.  Co. 
v.  Robinson,  etc.,  Co.,  183  111. 
App.  431.  See  Williston  on  Sales, 


p.  322,  and  Tranter  Manuf.  Co.  v. 
Blaney,  61  Pa.  Super.  379. 

69  As  to  what  amounts  to  a  suf- 
ficient plea  of  fraud,  see  Anderson 
v.    Merchants'    Grocery    Co.,    99 
S.  C.  383,  84  S.  E.  Rep.  109. 

70  Randall  v.  Rhodes,  1  Curt.  C. 
Ct,  90. 

71  Mumford        v.        McPherson 
(above). 

72  Van  Ostrand  i\  Reed,  1  Wend. 
427.    "  If  it  be  true  that  the  failure 
of  a  vendee  to  exact  a  warranty 
when  he  takes  a  written  contract 
precludes    him    from    showing    a 
warranty  by  parol,  a  multi  fortiori 
when  his  written  contract  contains 
a  warranty  on  the  identical  ques- 
tion, and  one  in  its  terms  incon- 
sistent with  the  one  claimed."    De 
Witt  v.  Berry,  134  U.  S.  306,  312. 


ranties  antedating  the  written  one. 
Houghton  Implement  Co.  v. 
Doughty,  14  N.  D.  331,  104  N.  W. 
Rep.  516. 

73  See  1  Pars,  on  Contr.  547. 

74  Thus  where  the  writing  con- 
sists of  a  written  undertaking  to 
ship,  with  an  acknowledgment  of 
previous  receipt  of  payment,  parol 
evidence  is  admissible  to  show  what 
the  terms  of  contract  of  sale  were, 
and  that  the  goods  were  those  actu- 
ally ordered.    Hogins  v.  Plympton, 
11  Pick.  97,  SHAW,  Ch.  J. 

In  an  action  for  the  price  of  coal 
sold  and  delivered  on  a  written 
order  which  does  not  in  express 
terms  embody  any  warranty,  parol 
evidence  is  admissible  to  show  a 
warranty  as  to  quality,  on  the 
theory  that  the  writing  does  not 
contain  all  the  terms  of  the  con- 
tract. Lovell  v.  Alton,  82  Misc. 
431,  143  N.  Y.  Supp.  995. 

75  Filkins  v.  Whyland,  24  N.  Y. 
338;  24  Barb.  379;  Allen  v.  Pink, 
4  Mees.  &  W.  140.    Contra,  where 
the  statute  of  frauds  required  the 
bill.    Lamb  v.  Crafts,  12  Mete.  353. 

76  Foot  v.  Bentley,  44  N.  Y.  166. 


BREACH    OF   WARRANTY  885 

not  preclude  evidence  of  oral  warranty.  And  if  there  be  a 
written  contract,  the  fact  does  not  preclude  evidence  of  a 
warranty  made  by  parol,  subsequent  to  the  execution  of  the 
written  contract.77 

An  express  warranty  does  not  preclude  an  implied  war- 
ranty to  the  same  effect  unless  inconsistent  therewith.78 
And  an  express  warranty  may  be  helped  out  or  enlarged  by 
a  warranty  implied  from  knowledge  of  the  purpose  for  which 
the  thing  was  ordered.79 

79.  Parol  Evidence  to  Explain  Warranty. 

Upon  principles  already  stated,  ambiguous  expressions 
in  the  warranty  may  be  explained  by  parol.80 

80.  Variances  in  the  Contract,  and  Breach. 

Variances  between  the  allegation  and  proof,  in  respect  to 
other  parts  of  the  contract, — the  title  to  the  goods,81  the 
consideration  of  the  sale,82  and  the  like, — are  of  secondary 

77  Brewster  v.   Countryman,    12  to  show  whether  a  two-horse  or 
Wend.  446.  four-horse  team  was  meant.    San- 

78  Pers.  Prop.  L.   (N.  Y.  Cons.  son  v.  Madigan,  15  Vt.  144.    And 
Laws),  §96,  sub.  6;  Ross  «.  Terry,  see  Pike  v.  Fay,  101  Mass.   134. 
63  N.  Y.  615.    Contra,  Whitmore  Otherwise  of  evidence  contradict- 
?-.  South  Boston  Iron  Co.,  2  Allen,  ing  the  language.    Yates  v.  Pym, 
52,  60,  s.  c.,  1  Am.  L.  Reg.  N.  S.  6  Taunt.  446. 

403.    Compare  Boothby  v.  Scales,  Thus  where  the  contract  called 

27  Wis.  626.  for  a  chassis  of  a   certain  horse 

79  See  Parks  P.  Morris  Tool  Co.,  power,   the   purchaser  could  not, 
54  N.  Y.  586,  affi'g  4  Lans.  103,  in  the  absence  of  fraud  or  deceit, 
s.  c.,  60  Barb.  140.  recover  for  the  breach  of  an  alleged 

An  express  warranty  does  not  oral  warranty  by  the  seller  that 

exclude  an  implied  warranty  un-  the  motor  would  develop  a  greater 

less  the  two  would  be  inconsistent.  horse  power.    Colt  v.  Demarest  & 

Lidgerwood  Manuf.  Co.  v.  Robin-  Co.,  159  N.  Y.  App.  Div.  394,  144 

son,  etc.,  Co.,  183  111.  App.  431.  N.  Y.  Supp.  557. 

80  Paragraphs  9,  10.    Thus  on  a  81  Starr  v.  Anderson,   19  Conn, 
warranty    that    a    machine    could  338. 

do  certain  work  "with  a  good  82  Smith  v.  Battams,  L.  J.  26 
team,"  parol  evidence  of  the  decla-  Exch.  232;  Turner  v.  Huggins,  14 
rations  of  the  party  is  admissible,  Ark.  21.  The  fact  that  the  money 


886  ACTIONS   AND   DEFENSES   ON 

importance  in  proving  the  warranty,  and  are  indulgently 
treated. 

Under  the  allegation  of  warranty  and  breach,  evidence  of 
defendant's  subsequent  promise  to  cure  the  defect  is  ad- 
missible, and  he  may  be  held  liable  on  that  promise; 83  but 
mere  proof  of  a  subsequent  agreement  to  rescind  the  original 
contract  and  return  the  money,84  is  not  sufficient,  at  least 
without  amendment. 

81.  Breach. 

To  sustain  an  action  upon  a  warranty,  it  is  not  necessary 
to  prove  that  all  the  representations  made  by  defendant 
were  false,  or  actionable.  It  is  enough  to  prove  that  any 
were  so.85  And  it  is  not  necessary  to  prove  that  the  seller 
knew  of  the  defect.86  The  question  whether  the  article  cor- 
responds with  the  warranty,  is  usually  one  for  the  jury.87 
If  the  qualities  of  the  article  be  proved  by  the  testimony  of 
a  witness  to  whom  it  has  been  submitted  for  inspection, 
there  must  be  direct  evidence  that  the  thing  of  which  the 
witness  speaks  was  the  same  as  that  delivered  or  offered.88 
If  fraud  is  alleged,  evidence  that  other  goods  were  fraudu- 
lently sold  by  the  seller  to  other  persons,  is  relevant  to  the 
question  of  scienter  within  the  limits  marked  by  the  rules 

was     paid     by     plaintiff's    agent  mere    representation,     as    distin- 

who    had    not    been    reimbursed,  guished    from    a    warranty.      Id. 

is     not     material.       Indianapolis,  Compare  Edick  v.  Grim,  10  Id.  445. 

Peru  &  Chicago  Ry.  Co.  v.  Tyng,  *  McKinley  v.  Small,  160  N.  W. 

63  N.  Y.  653,  affi'g  2  Hun,  311,  Rep.  (Mich.)  652;  Bayer  v.  Winton 

s.  c.,  4  Supm.  Ct.  (T.  &  C.)  524.  Motor  Car  Co.,  160  N.  W.  Rep. 

»  Dennis  v.  Coman,  61  N.  Y.  642.  (Mich.)  642;  Crerar,  Adams  &  Co. 

84  Dickinson  v.  Lane,  107  Mass.  v.  Brittain,  195  111.  App.  38;  War- 

548.  ren    v.     Renault     Freres    Selling 

85  Sweet   v.    Bradley,   24   Barb.      Branch,  195  111.  App.  117.     Even 

549.  if  the  thing  be  produced  in  court. 
MLoper  v.  Lingo,  97  Atl.  Rep.      Morton    v.    Fairbanks,    11    Pick. 

(Del.)   585;  Carley  v.   Wilkins,  6.  368.    See  Grossman  v.  Lurman,  33 

Barb.  557;  Wears  v.  Johnson,  151  N.  Y.  App.   Div.  422,   54  N.  Y. 

N.  Y.  App.  Div.  770,  136  N.  Y.  Supp.  72. 
Supp.    316.      Otherwise    as    to    n         <*  Perry  v.  Smith,  22  Vt.  301. 


BREACH    OF    WARRANTY 


887 


applicable  in  actions  for  deceit.  So  if  the  seller  has  adduced 
evidence  that  he  never  made  or  sold  inferior  goods  to  any- 
one, evidence  of  sales,  etc.,  to  third  persons  is  competent 
hi  rebuttal.89  And  in  other  cases,  on  a  conflict  of  evidence  as 
to  quality,  evidence  of  the  bad  quality  of  other  things  of  the 
same  production  and  condition  of  keeping,  may  be  relevant 
as  raising  a  presumption  that  the  thing  in  question,  parcel 
of  the  same  batch  or  crop,  had  the  like  alleged  defect.90 
Where  the  article  is  contracted  for,  to  serve  a  specified  use, 
evidence  is  admissible  of  the  difference  in  the  results  pro- 
duced in  such  use,  by  the  sample  or  model  ordered,  and  the 
imitation,  as  corroborative  of  their  inherent  difference.91 
If  the  parties  agreed  on  submitting  the  question  of  con- 
formity to  the  warranty  to  the  arbitrament  of  a  third  per- 
son,92 or  to  a  specific  test,93  the  decision  so  had,  is  conclu- 
sive,94 unless  fraud  or  bad  faith  is  shown.95  Where  the 
thing  sold  consists  of  a  large  quantity  of  merchandise,  it  is 


89  Durst  v.  Burton,  2  Lans.  137, 
affi'd  in  47  N.  Y.  167. 

As  to  whether,  in  order  to  make 
available  a  plea  of  fraud,  it  is 
necessary  for  the  vendee  to  tender 
back  the  goods,  see  Anderson  v. 
Merchants'  Grocery  Co.,  99  S.  C. 
383,  84  S.  E.  Rep.  109. 

90  Buchanan  v.   Collins,  42  Ala. 
419. 

"Tilton  v.  Miller  &  Co.,  66 
Penn.  St.  388,  s.  c.,  5  Am.  Rep. 
373. 

In  an  action  to  recover  the  price 
of  a  design  for  a  label,  it  was  held 
error  to  refuse  to  allow  the  de- 
fendant to  exhibit  another  design 
of  the  same  subject  subsequently 
made  by  another  firm,  "for  the 
purpose  of  showing  the  difference 
between  the  design  offered  by  the 
plaintiff  and  the  one  furnished  by 
the  other  company."  The  court 


intimated  that  such  evidence  might 
not  be  at  all  conclusive  but  it 
nevertheless  was  some  evidence 
tending  to  show  whether  the  plain- 
tiff had  complied  with  his  contract. 
The  soundness  of  this  decision, 
however,  is  perhaps  doubtful. 
Louisville  Lithographic  Co.  v. 
Schedler,  23  Ky.  Law  Rep.  465, 
63  S.  W.  Rep.  8. 

91  McParlin  v.  Boynton,  8  Hun, 
449. 

93  Sharpe  v.  Great  Western  Ry., 
9  Mees.  &  W.  6,  s.  c.,  2  Am.  Ry. 
Cas.  722. 

94  See  for  the  cases  on  the  general 
question    Schencke    v.    Rowell,    3 
Abb.  New  Cas.  42.    But  see  Cross- 
man  v.   Lurman,  33  N.  Y.  App. 
Div.  422,  54  N.  Y.  Supp.  72. 

95  See    Bowery    Nat.    Bank    v. 
Mayor,  &c.,  63  N.  Y.  363,  rev'g 
3  Hun,  639. 


888  ACTIONS   AND   DEFENSES   ON 

not  necessary  in  the  first  instance  to  prove  that  every  lot 
or  package  was  examined.  It  is  enough  that,  of  a  quantity 
of  similar  parcels,  a  reasonable  number  were  opened  and  all 
found  alike  defective.96  The  general  character  or  quality 
of  the  thing  beyond  the  limits  of  that  called  for  by  the  war- 
ranty, is  not  relevant.97 

In  an  action  on  a  warranty  of  title  to  a  chattel,  breach  is 
usually  proved  by  an  eviction  by  recovery; 98  but  the  buyer 
may  recover  on  proof  of  a  demand  made  on  him  by  virtue 
of  a  paramount  claim  to  which  he  voluntarily  surrendered; 
in  such  case,  however,  the  burden  of  proving  the  claim  is  on 
him.99  If  eviction  by  recovery  is  relied  on,  the  judgment 
against  the  buyer  is  competent.1  It  has  been  held  incum- 
bent on  the  defendant  to  plead  and  prove  fraud  or  collusion 
in  the  judgment  of  eviction,  if  he  would  avoid  its  effect,  even 
where  the  plaintiff  did  not  attempt  to  prove  notice  of  the 
suit  to  the  warrantor; 2  and  if  the  warrantor  had  adequate 
notice  of  the  action,  and  an  opportunity  to  litigate  it,  the 
judgment  recovered  on  the  merits  is  conclusive  against  him.3 
But  mere  knowledge  of  the  action  and  a  notice  to  attend 
the  trial  are  not  enough.4 

82.  Opinions  of  Witnesses. 

Where  a  qualified  expert  is  examined  as  to  the  quality 
of  the  article,  it  is  competent  to  ask  the  general  question- 
as  for  instance,  whether  the  machine  in  question  was  made 
in  a  workmanlike  manner.  The  facts  may  be  called  for  in 

^Renaud  v.  Peck,  2  Hilt.  137.          "Bordwell  v.  Collie,  45  N.  Y. 

97  Thus  under  a  warranty  that  a      494,  affi'g  1  Lans.  141. 

furnace  should  heat  the  building  l  Atkins    v.    Hosley,    3    Supm. 

to  70  degrees,  the  requisite  degree  Ct.  (T.  &  C.)  322. 

of  heat  for  ordinary  dwellings  is  -  Blasdale  v.  Babcock,  1  Johns, 

irrelevant.     Bristol   v.   Tracy,   21  517;    Barney    v.    Dewey,    13    Id. 

Barb.  236.  224. 

98  And  it  was  formerly  held  that  3  Fake  v.  Smith,  2  Abb.  Ct.  App. 
this  was  the  only  evidence,  unless  Dec.  76. 

there    was    affirmative    proof    of          4  Somers  v.  Schmidt,  24  Wis.  417, 
guilty  knowledge.    Case  v.  Hall,  24      s.  c.,  1  Am.  Rep.  191. 
Wend.  103. 


BREACH    OF   WARRANTY  889 

detail,  and  in  the  case  of  any  other  than  a  skilled  witness, 
they  should  be  called  for; 5  but  in  examining  a  skilled  wit- 
ness, the  party  may,  if  he  choose,  rest  upon  the  general  state- 
ment alone  and  leave  it  to  his  adversary  to  call  for  more 
specific  objections  to  the  work  by  cross-examination,  and 
he  has  a  right  to  do  so.6 

A  liberal  rule  is  applied  in  regard  to  opinions  as  evidence 
as  to  diseases  of  animals,  as  it  is  rare  that  persons  are  found 
who  make  the  treatment  of  diseases  of  domestic  animals 
a  distinct  profession,  or  attain  to  great  skill  or  science  therein. 
The  best  skill  and  science  that  can  be  expected  will  be  the 
evidence  of  persons  who  have  had  much  experience,  and 
have  been  for  years  made  acquainted  with  such  diseases 
and  their  treatment.7  The  qualification  of  the  witness  is  a 
question  of  law  for  the  court;  but  in  proportion  as  his  char- 
acter as  an  expert  is  contested,  it  is  important  that  his  testi- 
mony should  be  confined  to  facts  rather  than  opinion.  In 
a  case  of  breach  of  warranty,  by  disease,  a  medical  witness, 
who  has  stated  that  he  has  read  various  standard  authors 
on  the  subject  of  disease,  and  has  given  his  own  opinion  in 
respect  to  the  character  of  the  disease  of  which  the  animal 
died,  may  be  asked:  "What  is  the  best  opinion,  according 
to  the  best  medical  authority?"  8 

83.  Admissions  and  Declarations. 

Evidence  that  the  seller  on  being  complained  to  that  he 
had  given  a  warranty,  and  that  it  was  broken,  only  denied 
the  breach,  is  sufficient  evidence  to  sustain  a  finding  that 
he  gave  the  warranty.9  Whether  declarations  of  an  agent 
are  competent  depends  on  the  test  applicable  in  other  cases. 

5  Strevel  v.  Hempstead,  44  Barb.  485.    Contra,  Graves  v.  Moses,  13 
518.  Minn.  335;  and  see  Spear  v.  Rich- 

6  Curtis  v.  Gano,  26  N.  Y.  426;  ardson,  34  N.  H.  428. 
Beekman  v.  Johnson,  35  Ala.  252.  8Pierson    v.    Hoag,    47    Barb. 

•  Slater  v.  Wilcox,  57  Barb.  604.  243. 

Compare  McDonald  v.  Christie,  42  9  Miller  v.  Lawton,  15  C.  B.  N.  S. 

Barb.  36;  Joy  v.  Hopkins,  5  Den.  84;  834;  Salmon  v.  Ward,  2  Carr.  &  P. 

Willis  v.  Quimby,  11  Fost,  (N.  H.)  211. 


890 


ACTIONS   AND   DEFENSES   ON 


An  authority  to  receive  payment  for  goods  sold,  does  not 
make  the  agent's  declarations  in  regard  to  the  condition  of 
the  goods,  evidence  against  his  principal.10  But  where  one 
is  employed  by  the  seller  to  remedy  the  alleged  defect  after 
delivery,  his  declarations,  made  as  part  of  the  res  gestce, 
while  engaged  in  the  work,  are  competent.11 

84.  Omission  to  Return  the  Article. 

If  a  warranty  has  been  proved,  keeping  the  goods,  delay- 
ing to  give  notice  of  the  defect,  etc.,  may  furnish  a  strong 
presumption  against  an  alleged  breach  of  warranty;  but 
cannot  bar  the  buyer  from  suing  for,  or  recouping  his  dam- 
ages for  such  breach,  if  proved.12 


10Hyland  v.  Sherman,  2  E.  D. 
Smith,  234. 

A  purchaser  of  a  horse  under  a 
warranty  that  if  it  is  not  as  war- 
ranted, he  may  return  it  and  either 
obtain  his  money  back  or  exchange 
it  for  another  horse,  cannot  re- 
cover the  cost  of  keeping  the  horse 
for  breeding  purposes  after  he 
learns  that  the  animal  is  not  as 
warranted.  Ellwood  v.  McDill, 
105  Iowa,  437, 75  N.  W.  Rep.  340. 

11  Kimball  Manuf.  Co.  v.  Vro- 
man,  35  Mich.  310. 

The  buyer  may  explain  his  writ- 
ten statement  to  the  seller  that 
the  subject  of  the  sale  was  in  good 
condition,  by  showing  that  he 
meant  apparently  in  good  con- 
dition. See  Elwood  v.  McDill, 
105  Iowa,  437,  75  N.  W.  Rep.  340. 

"Muller  v.  Eno,  14  N.  Y.  (4 
Kern.)  597;  J.  B.  Madsen  &  Co.  v. 
Hogans,  189  111.  App.  589;  Peterson 
v.  Denny-Renton  Clay  &  Coal  Co., 
89  Wash.  141,  154  Pac.  Rep.  123; 
Feilder  v.  Starkin,  1  H.  Blackst, 
17;  Coner  r.  Dempsey,  49  N.  Y. 


665;  Smeltzer  v.  White,  92  U.  S. 
(2  Otto)  390,  395.  But  under 
executory  contract,  acceptance 
after  opportunity  to  examine, 
waives  objections  to  patent  de- 
fects. Gay  lord  Manuf.  Co.  v. 
Allen,  53  X.  Y.  515.  Compare 
Grimoldby  v.  Wells,  L.  R.  10  C.  P. 
391,  s.  c.,  12  Moak's  Eng.  R.  451, 
and  cases  cited. 

Where  a  jack  was  purchased 
under  circumstances  giving  rise 
to  an  implied  warranty  of  its  fit- 
ness for  breeding  purposes,  and 
the  jack  proved  worthless  for  that 
purpose  but  was  valuable  for  other 
purposes,  its  retention  by  the  buyer 
rendered  him  liable  for  the  animal's 
actual  value,  the  sale  price  furnish- 
ing a  basis  for  calculation.  Mon- 
roe v.  Arthaud,  186  S.  W.  Rep. 
(Mo.)  554. 

The  Sales  Act  (N.  Y.  Pers.  Prop. 
Law,  §  130,  provides  that  "if, 
after  acceptance  of  the  goods,  the 
buyer  fails  to  give  notice  to  the 
seller  of  the  breach  of  any  promise 
or  a  warranty  within  a  reasonable 


BREACH    OF    WARRANTY  891 

86.  Damages. 

A  breach  having  been  proved  there  must  be  some  evidence 
of  difference  in  value  between  the  article  as  furnished  and 
the  article  as  agreed  to  be  furnished. 13  A  mere  offer  to  prove 
the  value  of  the  thing  furnished,  unconnected  with  evidence 
of  that  of  the  thing  agreed  for,  may  be  excluded.14  The  wit- 
ness cannot  speak  directly  to  the  amount  of  damages  re- 
coverable; but,  if  the  thing  have  a  market  value,  a  qualified 
witness  may  give  an  opinion  of  its  value,  and  of  the  difference 
between  its  actual  value,  and  what  would  have  been  its 
value  had  it  corresponded  to  defendant's  representations.15 
If  the  thing  or  its  condition  be  such  that  it  has  no  known  or 
market  value,  the  damages  are  necessarily  special,  and  the 
items  of  actual  loss  should  be  proved,  and  the  whole  left  to 
the  jury.16  To  charge  with  consequential  damages  there 
should  be  evidence  either  that  the  object  of  the  buyer  was 
specially  brought  to  the  notice  of  the  seller, 17  or  that  circum- 
stances were  known  to  the  seller,  from  which  the  intention 
ought  in  reason  to  be  inf erred,  so  that  the  object  may  be 
taken  to  have  been  within  the  contemplation  of  both 
parties. 1S 

In  an  action  for  breach  of  the  warranty  implied  or  ex- 
pressed in  the  assignment  of  a  judgment,  the  prima  fade 
value  of  the  judgment  is  the  amount  of  money  which  the 

time   after   the   buyer  knows,   or  Miller     v.     Smith,      112      Mass, 

ought   to   know,   of  such   breach,  470. 

the  seller  shall  not  be  liable  there-          1S  Whitney  v.  Taylor,  54  Barb, 

for."  536;  Levison  v.  Oes,  98  Misc.  260, 

13  Fales  v.  McKeon,  2  Hilt.  53;  162  N.  Y.  Supp.  1043. 
Williams  v.  J.  F.  Rowley  Co.,  195          17  As  in  Messmore  v.  N.  Y.  Shot 
111.  App.  638;  Rittenhouse,  Win-  and  Lead  Co.,  40  N.  Y.  422;  M. 
terson  Auto  Co.   v.   Kissner,   129  Hornmel  Wine  Co.  v.  Netter,  197 
Md.  102,  98  Atl.  Rep.  361.  111.  App.  382. 

14  Leonard  v.  Fowler,  44  N.  Y.          18  Smith  v.  Green,  L.  R.  1  C.  P. 
296.     See,    Dravo    Doyle   Co.   v.  Div.  94,  s.  c.,  16  Moak's  Eng.  443; 
Sulzberger  &   Sons   Co.,   197   111.  Gorham  v.  Dallas,  etc.,  Ry.  Co., 
App.  547.  106  S.  W.  Rep.  (Tex.  Civ.  App.) 

16  Rogers  v.  Ackerman,  22  Barb.      930. 
134;  Nickley  v.  Thomas,  Id.  652; 


892  ACTIONS   AND    DEFENSES    ON 

debtor  in  the  judgment  appears  liable  to  pay  thereon.19 
The  amount  of  the  consideration  of  the  assignment  is  im- 
material.20 But  evidence  of  the  less  value  of  property  which 
could  have  been  taken  on  execution  at  the  tune  of  the  assign- 
ment, may  be  competent  in  mitigation.21  The  expenses  of 
attempting  to  enforce  the  judgment  against  one  who  had 
been  released,  if  pleaded,  are  recoverable.22 

86.  Disproof  of  Implied  Warranty. 

Proof  of  express  and  unqualified23  refusal  to  warrant, 
negatives  the  implied  warranty  that  otherwise  might  arise.24 
The  implied  warranty  of  title,  and  the  implied  warranty  of 
amount  unpaid  upon  a  security  assigned,  rest  upon  the  pre- 
sumption of  law  that  the  vendor  knows  the  facts  which  he 
impliedly  warrants;  and  this  is  a  conclusive  presumption, 
and  cannot  be  contradicted.26 

87.  Buyer's  Knowledge  of  Defect. 

In  an  action  on  a  written  warranty  of  soundness  of  a 
chattel,  parol  evidence  is  admissible,  to  show  that  the  de- 
fects complained  of  were  made  known  to  the  plaintiff  at 
the  time  of  the  sale.  A  warranty  does  not  extend  to  defects 
which  are  visible.26  And  when  it  is  proved  affirmatively, 

19  Furniss  v.  Ferguson,  34  N.  Y.      of  an  implied  warranty  that  might 
485,  affi'g  3  Robt.  269.  otherwise    arise.      Glover    Mach. 

20  Sweet    ?'.    Bradley,    24  Barb.      Works  v.  Cooke-Jellico  Coal  Co., 
549.  173  Ky.  675,  191  S.  W.  Rep.  516; 

21  Jansen  v.  Ball,  6  Cow.  628.  Holt   Lumber  Co.   v.   Givens,   72 
22Weston    r.    Chamberlain,    56      So.    Rep.    (Ala.)    257;    Slinger    v. 

Barb.  415.  Totten,  160  N.  W.  Rep.   (S.  D.) 

23  Wood  v.  Smith,  5  M.  &  Ry.      1008. 

124;  Detroit  Trust  Co.  v.  Engel,  25  Furniss  v.  Ferguson,  34  N.  Y. 

158  N.  W.  Rep.  (Mich.)  123;  Car-  485,  affi'g  3  Robt.  269. 

ter  v.  McGill,  171  N.  C.  775,  89  26Schuyler  v.  Russ,  2  Cai.  202. 

S.  E.  Rep.  28.  Blindness  of  a  horse  from  cata- 

24  So  held  as  to  genuineness  of  racts  is  not  a  patent  defect.    Wears 
note.    Bell  v.  Dagg,  60  X.  Y.  528.  v.  Johnson,  151  N.  Y.  App.  Div. 

In  like  manner  an  express  war-      770,  136  X.  Y.  Supp.  316. 
ranty   precludes   the   presumption 


BREACH    OF    WARRANTY  893 

that  the  purchaser  knew  of  the  defect  at  the  time  of  the  sale, 
he  cannot  recover  damages.27  But  an  offer  to  show  that  he 
had  means  of  knowledge  is  not  enough.28 

88.  Seller's  Good  Faith. 

A  breach  of  warranty,  as  distinguished  from  a  mere  false 
representation  having  been  proved,  evidence  of  facts  show- 
ing that  defendant  made  it  under  misinformation29  and  in 
good  faith,  is  irrelevant. 

89.  Former  Adjudication. 

Judgment  in  an  action  of  deceit,  for  a  false  statement  as 
to  quality,  is  a  bar  to  an  action  on  contract  on  a  false  war- 
ranty of  the  same  quality,  and  so  of  the  converse.30  Judg- 
ment in  an  action  for  the  price  is  also,  if  the  buyer,  by  his 
answer  in  that  action  or  his  course  on  the  trial  of  it,  admitted 
the  validity  of  the  seller's  claim;  otherwise  not.31 

27  H.     Hommel     Wine     Co.     v.  warranty.    Alexander  v.  Stone,  29 
Netter,    197    111.    App.    382,    and  Cal.  App.  488, 156  Pac.  Rep.  998. 
cases   cited;   Studer  r.   Bleinstein,  29  Brisbane  v.  Parsons,  33  N.  Y. 
115  N.  Y.  316,  324,  22  N.  E.  Rep.  332. 

243,  5  L.  R.  A.  702;  Chandler  t>.  30  2    Whart.    Ev.,    §779,    citing 

Lopus,    1    Smith's    L.    Cas.    299,  Ware    T.    Percival,    61    Me.    391; 

320,  and  cases  cited.  Norton  v.  Doherty,  3  Gray,  372. 

28  Furniss  v.  Ferguson,  34  N.  Y.  See  N.  Y.  Code  Civ.  Pro.,  §  549. 
485,  affi'g  3  Robt.  269;  Grace  v.  "  Whart.  Ev.,  §  790,  citing  Davis 
Levy,  30  Cal.  App.  231,  156  Pac.  v.  Talcott,  12  N.  Y.  184;  Mondel 
Rep.  626.  T.  Steel,  8  Mees.  &  W.  858;  Davis 

Evidence  of  an  opportunity  to  v.  Hedges,  L.  R.,  6  Q.  B.  687;  Bas- 

examine    the    goods,    though    not  com  v.   Manning,  52  N.  H.   132; 

availed  of,  has  been  held  to  rebut  Burnett  r.  Smith,  4  Gray,  50;  Ihm- 

the    presumption    of    an    implied  sen  v.  Ormsby,  32  Penn.  St.  198. 


CHAPTER  XVII 
ACTIONS  FOR  USE  AND  OCCUPATION  OF  REAL  PROPERTY 

1.  Grounds  of  the  action.  4.  Parties. 

2.  The   relation    of    landlord    and      5.  Defendant's  occupation. 

tenant.  6.  Measure  of  recovery. 

3.  Express  contract.  7.  Admissions  and  declarations. 

1.  Grounds  of  the  Action. 

The  gist  of  the  action  is  that  defendant  has  had  the  use 
and  occupation  of  plaintiff's  real  property,  by  virtue  of  an 
agreement  therefor,  express  or  implied,  made  between  them, 
under  which  plaintiff  is  entitled  to  a  reasonable  compensa- 
tion. 

2.  The  Relation  of  Landlord  and  Tenant. 

There  must  be  proof  that  the  conventional  relation  of  land- 
lord and  tenant  existed.32  It  is  not  enough  to  show  privity 
of  estate;  there  must  be  privity  of  contract.33  The  contract, 
however,  need  not  be  expressed,  but  may  be  implied  from 
circumstances,  such  as  defendant's  entering,  or  holding  over, 

32  6  Abb.  N.  Y.  Dig.  New  ed.  54;  33  Glover  ».  Wilson,  2  Barb.  264. 
Carpenter  v.  U.  S.,  17  Wall.  489,  A  lease  has  been  said  to  possess 

493;  City  of  Boston  v.  Binney,  11  a  dual  character.     The  rights  and 

Pick.   1;  Thompson  v.  Bower,  60  obligations  arising  from  the  rela- 

Barb.  463;  Dennett  v.  Penobscot  tion   of   landlord   and   tenant  are 

Fair  Co.,  57  Me.  425,  s.  c.,  2  Am.  founded  on  the  privity  of  estate, 

Rep.   58;   Burdin   v.   Ordway,   88  while  those  arising  from  the  ex- 

Me.  375,  34  Atl.  Rep.  175;  Blake  press  stipulations  of  the  lease  are 

v.  Preston,  67  Vt.  613,  615,  32  Atl.  founded    on    privity   of    contract. 

Rep.   491.     A   void   lease,   under  Samuels     v.     Ottinger,     169    Cat. 

which  the  defendant  entered  into  209,  146  Pac.  Rep.  638,  Ann.  Cas. 

possession,  is  admissible  to  show  1916,  E.  830.    Where  the  liability 

the  nature  of  the  holding.     Me-  of  the  defendant  is  founded  on  his 

Intosh  v.  Hodges,  110  Mich.  319,  privity  of  estate  and  not  on  contract 

68  N.  W.  Rep.  158,  70  N.  W.  Rep.  a  plea  of  non  est  factum  is  bad. 

550.  Cross  ».  Button,  5  Wis.  600. 
894 


ACTIONS  FOR  USE  OF  REAL  PROPERTY 


895 


after  notice  from  plaintiff  that  he  should  expect  a  rent;  34 
or  from  the  defendant's  recognition  of  the  plaintiff  as  land- 
lord, as,  for  example,  by  repeatedly  paying  rent  to  the  agent 
of  the  plaintiff,  and  taking  receipts  from  him  as  landlord.35 
An  implied  obligation  to  pay  is  not,  however,  raised  from 
mere  possession;  there  must  be  an  implied  agreement  for 
the  use.  The  evidence  must  imply  that  the  relation  of  land- 
lord and  tenant  was  created  by  agreement  or  understanding 


34  Coit  v.  Planer,  4  Abb.  Pr.  N. 
S.  140,  s.  c.,  7  Robt.  413;  Despard 
v.  Walbridge,  15  N.  Y.  374. 

Where  the  owner  of  premises 
leases  them  to  the  defendant  for 
a  certain  term,  and  subsequently 
leases  the  same  premises  to  the 
plaintiff  for  a  term  to  commence 
at  the  expiration  of  the  defend- 
ant's term,  no  relation  of  landlord 
and  tenant  is  created  between  the 
plaintiff  and  defendant,  and  the 
plaintiff  cannot  hold  the  defendant 
as  a  hold-over  tenant  if  the  de- 
fendant remains  in  possession  after 
the  expiration  of  his  term.  But 
if  before  the  expiration  of  the  de- 
fendant's term,  the  defendant  re- 
quests the  plaintiff  to  allow  him  to 
remain  in  possession  after  the 
expiration  of  his  term,  and  the 
plaintiff  refuses  the  request  and 
notifies  the  defendant  that  if  he 
remains  in  possession  the  plaintiff 
will  hold  him  liable  for  an  addi- 
tional year  as  a  hold-over  tenant, 
the  relation  of  landlord  and  tenant 
will  be  implied,  and  if  the  defend- 
ant remains  in  possession  at  the 
expiration  of  his  term  he  will  be 
answerable  to  the  plaintiff  for 
a  year's  rent  on  the  same  terms  as 
in  the  defendant's  original  lease. 
United  Merchants'  Realty,  etc., 


Co.  v.  Roth,  122  App.  Div.  628, 
107  N.  Y.  Supp.  511. 

36  McFarlan  v.  Watson,  3  N.  Y. 
286. 

Where,  after  the  death  of  the 
landlord,  the  tenants  hold  over 
and  occupy  the  premises,  and  at- 
torn to  the  executrix  of  the  estate 
of  the  decedent,  and  continue  to 
pay  rent  without  objection  to  her 
for  five  years,  the  relation  of  land- 
lord and  tenant  is  clearly  estab- 
lished between  the  executrix  and 
the  tenants,  and  the  payment  of 
rent  estops  them  from  disputing 
the  title  of  the  executrix.  Howe  v. 
Gregory,  2  Ind.  App.  477,  28  N.  E. 
Rep.  776. 

The  receipt  of  rent  from  one  in 
possession  of  real  estate  is  suf- 
ficient to  imply  the  existence  of  the 
relation  of  landlord  and  tenant,  and 
summary  proceedings  to  dispossess 
will  lie.  Weinhaner  v.  Eastern 
Brewing  Co.,  85  N.  Y.  Supp.  354. 

When  a  tenant  testifies  that  he 
has  lived  in  a  place  for  thirteen 
years,  and  that  he  paid  $25  when 
he  first  went  there  and  $25  be- 
tween the  1st  and  the  llth  days 
of  each  month  thereafter,  a  monthly 
tenancy  is  proved.  Drake  v. 
Cunningham,  127  App.  Div.  79, 
111  N.  Y.  Supp.  199. 


896 


ACTIONS   FOR   USE   AND 


of  the  parties.36  Where  defendant  has  entered  and  occupied 
by  permission  of  plaintiff,  without  any  express  agreement, 
the  law  implies  a  promise  on  his  part  to  pay  a  reasonable 
compensation,  but  such  presumption  does  not  arise  when 
an  arrangement  is  proven  showing  that  the  parties  did  not 
intend  to  constitute  the  relation  of  landlord  and  tenant.37 
Evidence  that  after  the  determination  of  a  lease,  the  tenant 
held  over  and  paid  rent,  is  conclusive  evidence  of  a  tenancy,38 


36  Id.,  and  cases  cited. 

One  who  goes  into  possession 
simply  of  the  real  estate  of  an- 
other is  presumed  to  be  a  tenant, 
in  the  absence  of  any  proof  to  re- 
but such  presumption.  Heddles- 
ton  v.  Stoner,  128  la.  525,  105  N.  W. 
Rep.  56. 

Where  a  corporation  takes  a 
mortgage  upon  a  term  as  collateral 
security,  and  receives  the  key  to 
the  premises  from  the  landlord, 
but  never  enters  into  possession 
of  them,  the  mere  receipt  of  the 
key  will  not  raise  a  presumption 
of  tenanc}^,  and  the  mortgagee  will 
not  become  liable  as  assignee  upon 
the  covenants  contained  in  the 
lease.  Levy  v.  Long  Island  Brew- 
ing Co.,  26  Misc.  410,  56  X.  Y. 
Supp.  242. 

Where  one  person  occupies  the 
land  of  another  in  subordination  of 
the  latter 's  title,  and  with  the 
latter 's  express  or  implied  consent, 
the  relation  of  landlord  and  tenant 
exists.  Hawkins  v.  Tanner,  129 
Ga.  497,  59  S.  E.  Rep.  225. 

"Carpenter  v.  U.  S.,  17  Wall. 
489,  493;  Hirschnian  v.  Knechle, 
95  Misc.  243,  158  N.  Y.  Supp.  734. 
It  has  been  held  that  proof  of  use 
and  occupation  alone  is  prima  facie 
evidence  of  the  relation  of  landlord 


and  tenant;  and,  therefore,  the 
very  fact  of  occupancy,  unex- 
plained, creates  a  liability  or  obli- 
gation for  the  rent  to  any  person 
entitled  thereto.  Anoatubby  v. 
Pennington,  46  Okl.  221,  148  Pac. 
Rep.  828.  In  an  action  to  recover 
the  rental  value  of  plaintiff's  land 
alleged  to  have  been  wrongfully 
taken  possession  of  and  occupied 
by  defendant  for  grazing  purposes, 
a  former  judgment  in  plaintiff's 
favor  against  the  defendant  for  a 
like  possession  and  occupation  of 
those  lands,  terminating  before  the 
commencement  of  this  action,  is 
admissible  in  evidence  against 
defendant.  Lazarus  v.  Phelps,  156 
U.  S.  202. 

38  Rose.  N.  P.  340,  citing  Bishop 
v.  Howard,  2  B.  &  C.  100;  and  see 
Bayley  v.  Bradley,  5  C.  B.  326.  But 
where  a  tenant  from  year  to  year, 
after  the  expiration  of  his  land- 
lord's title,  continued  in  possession 
for  one  quarter,  and  paid  rent  for 
that  quarter  to  the  reversioner, 
but  quitted  at  the  end  of  it,  the 
payment  is  not  evidence  of  a  ten- 
ancy for  more  than  the  quarter. 
Id.,  citing  Freeman  v.  Jury,  M.  & 
M.  19;  Jenner  v.  Clegg,  1  M.  &  Rob. 
213.  See  also  Matter  of  Steele,  154 
App.  Div.  860, 139  N.  Y.  Supp.  550. 


OCCUPATION  OF  REAL  PROPERTY 


897 


and  the  action  lies  for  rent  subsequent  to  the  term,  although 
the  lease  was  sealed.39  Any  evidence  of  indebtedness  for 
rent  in  an  immediately  preceding  period  is  competent,  in 
connection  with  evidence  of  continued  occupation.40 

3.  Express  Agreement.  ** 

If  the  occupation  was  under  an  express  agreement  which 
is  void  under  the  statute  of  frauds,  the  agreement  may  be 
proved  for  the  purpose  of  showing  the  intended  relation  of 
landlord  and  tenant.41  If,  however,  it  was  under  a  valid 


3»Abeel  v.  Radcliff,  13  Johns. 
297,  and  see  Bishop  r.  Howard,  2 
B.  &  C.  100. 

40  See  Withington  v.  Warren, 
12  Mete.  114;  Morris  v.  Niles,  12 
Abb.  Pr.  103. 

J0s  The  existence  or  nonexist- 
ence  of  an  express  agreement  on 
the  part  of  a  lessee  to  pay  rent 
becomes  of  controlling  importance 
in  suits  between  the  lessor  and 
lessee  for  rent  accruing  after  an  as- 
signment of  the  lease  by  the  latter 
with  the  consent  of  the  former.  It 
seems  that  where  the  lessee  has 
expressly  agreed  to  pay  the  rent 
his  liability  under  the  contract 
is  not  terminated  by  an  assign- 
ment of  his  lease,  though  made 
with  the  consent  of  the  lessor.  If, 
on  the  other  hand,  the  lessee  has 
not  expressly  bound  himself  to 
pay  the  rent,  his  assignment,  with 
the  lessor's  consent,  relieves  him 
of  further  obligation  to  pay  rent. 
By  "express  agreement,"  in  this 
connection,  is  meant  not  merely 
a  promise,  in  exact  words,  to  pay 
a  given  sum  as  rental;  any  lan- 
guage necessarily  importing  an  un- 
dertaking on  the  part  of  the  lessee 
to  pay  the  rent  will  satisfy  the  re- 


quirement of  the  rule.  Samuels  v. 
Ottinger,  169  Cal.  209,  146  Pac. 
Rep.  638. 

41  The  agreement,  though  by 
parol,  and  void  by  the  statute  of 
frauds  as  to  the  term  and  the  in- 
terest in  lands  sought  to  be  created, 
regulates  the  relations  of  the  par- 
ties to  it  in  other  respects  upon 
which  the  tenancy  exists,  and  may 
be  resorted  to  to  determine  their 
rights  and  duties,  in  all  things 
consistent  with,  and  not  inappli- 
cable to,  a  yearly  tenancy,  such  as 
the  amount  of  the  rent  to  be  paid, 
the  time  of  year  when  the  tenant 
could  be  compelled  by  the  land- 
lord to  quit,  and  any  covenants 
adapted  to  a  letting  for  a  year. 
Reeder  v.  Sayre,  70  N.  Y.  180,  26 
Am.  Rep.  567. 

If  the  agreement  be  regarded 
as  void  or  insufficient,  it  may  never- 
theless be  resorted  to,  in  order  to 
ascertain  the  terms  of  the  letting. 
Eagle  Tube  Co.  v.  Holsten,  110 
X.  Y.  Supp.  242. 

Where  evidence  is  introduced 
to  show  that  the  possession  of  the 
tenant  is  not  under  the  lease  sued 
on  but  under  a  lease  which  is  void 
by  acts  of  Congress,  the  evidence 


898 


ACTIONS   FOR   USE   AND 


sealed  agreement  the  action  must  be  upon  the  deed  itself.42 
The  statute,43  which  permits  an  action  of  assumpsit  for  use 
and  occupation  where  the  agreement  was  express,  but  not 
by  deed,  allows  the  agreement,  if  it  reserves  a  certain  rent, 
to  be  used  as  evidence  of  the  amount  recoverable.44  Under 
the  new  procedure,  the  distinction  between  this  action  and 
an  action  on  the  sealed  contract  is  formal;  and  if  the  proper 
parties  are  joined,  an  amendment  may  be  allowed  at  the 
trial,  if  there  has  been  no  surprise  on  defendant,  in  not  count- 
ing on  his  contract.45  Either  an  oral  or  unsealed  written 
agreement  for  hiring,  or,  hi  case  there  was  no  express  agree- 
ment, such  facts  as  will  raise  an  implied  contract,  may  be 
proved  under  a  general  allegation  of  indebtedness  for  use 


and  the  void  lease  are  competent 
and  admissible.  Lemmon  v.  United 
States,  45  C.  C.  A.  518,  106  Fed. 
Rep.  650.  See  Eccles.  Comrs. 
?'.  Merral,  L.  R.  4  Exch.  162;  and 
see  Greton  v.  Smith,  33  N.  Y.  245, 
affi'g  1  Daly,  380. 

42  Kiersted  v.  Orange,  &c.  R.  R. 
Co.,  69  N.  Y.  343,  346,  rev'g  1 
Hun,  151;  Abeel  t.  Radcliff,  13 
Johns.  297;  Pierce  v.  Pierce,  25 
Barb.  243.  For  the  rule  that  debt 
will  lie  for  use  and  occupation  under 
a  deed,  compare  6  Am.  Law.  Rev. 
17,  18. 

If  the  plaintiff  bases  his  action 
on  an  agreement,  the  cannot  read 
it  in  evidence  or  use  it  for  any  pur- 
pose at  the  trial,  until  he  has 
proved  its  execution.  Barry  v. 
Ryan,  4  Gray  (Mass.),  523. 

«  11  Geo.  II.,  c.  19,  §  14,  1  N.  Y. 
Real  Property  Law,  §  220. 

44  See  Abeel  v.  Radcliff,  and 
Pierce  v.  Pierce  (above);  Williams 
v.  Sherman,  7  Wend.  109. 

Where  the  landlord  covenants 
to  make  certain  repairs  before  the 


commencement  of  the  term  but 
fails  to  do  so,  and  the  tenant  enters 
into  possession  and  stays  in  pos- 
session until  the  termination  of  the 
lease,  he  cannot  refuse  to  pay  rent 
on  the  -ground  that  the  landlord 
did  not  make  the  repairs.  The 
covenants  to  repair  and  to  pay 
rent  are  independent  under  the 
circumstance.  Rubens  v.  Hill,  213 
111.  523, 72  N.E.  Rep.  1127. 

Where,  after  a  tenant  enters  into 
possession  under  a  written  lease, 
the  city  takes  the  fee  of  a  portion 
of  the  premises  for  a  street,  such 
action  by  the  city  is  a  variation  of 
the  lease  by  act  of  law.  The  effect 
is  the  same  as  though  the  parties 
had  agreed  to  discharge  a  part  of 
the  lease  and  apportion  the  rent, 
and  therefore  the  remedy  is  in 
assumpsit  for  use  and  occupation 
and  not  upon  the  lease.  McCardell 
v.  Miller,  22  R.  I.  96,  46  Atl.  Rep. 
184. 

45  Bedford  v.  Terhune,  30  N.  Y. 
453,  s.  c.,  27  How.  Pr.  422,  affi'g 
1  Daly,  471. 


OCCUPATION    OF   REAL   PROPERTY  899 

and  occupation.46  If  the  agreement  was  not  made  in  writ- 
ing a  witness  may  be  asked  to  "  state  the  terms. "  It  is  not 
necessary  to  ask  him  to  state  what  was  said.47  If  it  appears 
from  the  plaintiff's  evidence  that  defendant  held  under  a 
written  agreement  not  produced  or  accounted  for,  plaintiff 
will  not  be  allowed  to  give  parol  evidence  of  the  holding.48 
But  if  the  plaintiff  has  made  out  a  prima  fade  case,  without 
proof  of  the  existence  of  a  writing,  and  defendant  seeks  to 
show  that  he  held  under  a  written  agreement,  he  must  pro- 
duce the  instrument,  or  his  objection  is  untenable.49  To 
what  extent  a  written  agreement  of  lease  excludes  oral  evi- 
dence of  the  terms  is  considered  in  connection  with  Actions 
on  Leases. 

4.  Parties. 

Tenants  hi  common  may  join  as  plaintiffs,  upon  evidence 
that  the  tenant  has  always  paid  the  rent  to  their  joint  agent; 
for  this  is  evidence  of  a  joint  letting.50  But  a  lessee  of  one 

46  Waters  v.  Clark,  22  How.  Pr.  executed  by  one  of  two  attorneys  in 
104;  Morris  v.  Niles,  12  Abb.  Pr.  fact  who  signed  his  own  name  as 
103.                                                .  well  as  the  name  of  the  other  at- 

47  Frost   v.    Benedict,   21    Barb.  torney,  the  burden  is  on  the  de- 
247.    Thus  a  witness  may  testify  fendant  to  prove  that  the  one  had 
that  he  leased  the  property  to  de-  power  to  sign  for  both  before  the 
fendant  at  a  certain  rent,  reserv-  lease  can  be  admitted  in  evidence, 
ing  the  right  to  sell  it  at  any  time,  Freschi  v.  Molony,  65  App.  Div. 
and  that  defendant  accepted  it  on  516,  72  N.  Y.  Supp.  819. 

such  terms.    Id.  M  Last  v.  Dinn,  L.  J.  28  Ex.  94. 

.«  Brewer  v.  Palmer,  3  Esp.  213;          It  is  proper  to  join  as  parties 

Ramsbottom  v.  Mortley,  2  M.  &  plaintiff  one  of  two  owners  in  com- 

5.  445,  cited  in  Rose.  X.  P.  334.  mon  and  the  assignee  of  the  other 
« Id.,  citing  Fielder  v.  Ray,  6  owner.    Ely  v.  Bliss,  123  Mich.  195, 

Bing.  332;  R.  v.  Padstow,  4  B.  &  81  N.  W.  Rep.  1080,  6  Det.  Leg.  N. 

Ad.  208;  1  Greenl.  Ev.,  13th  ed.  1031. 

Ill,  §  87.  Where  two  tenants  in  common 

Where   the   defendant,   for   the  arrange  with  the  lessee  of  the  prem- 

purpose  of  disproving  a  parol  rent-  ises  to  have  him  divide  the  rent 

ing  agreement  which  has  been  set  into  two  equal  parts  and  to  pay  one 

up  by  the  plaintiff,  offers  in  evi-  part  to  one  of  the  owners  and  the 

dence  a  written  lease  which  was  other  to  the  other  owner,  a  sever- 


900  ACTIONS    FOR   USE   AND 

tenant  in  common  is  not  liable  to  the  other  without  proof  of 
a  joint  letting  or  an  attornment.51 

The  mere  fact  that  one  of  two  joint  lessees  holds  over  does 
not  charge  both.52  But  where  two  persons  sign  an  agree- 
ment to  become  tenants,  and  one  enters  under  it,  it  may  be 
presumed  that  he  entered  for  both;  and  use  and  occupation 
against  both  will  lie.53  The  fact  that  one  tenant  in  common 
has  had  the  entire  occupancy  of  the  common  estate,  and  his 
co-tenants  have  not  occupied  it,  with  proof  of  value,  is  not 
enough  to  sustain  their  action  against  him  for  the  value  of 
the  use  of  their  interests.54  Each  is  entitled  to  occupy;  and 
the  presumption  of  law  is  that  either  is  hi  possession  under 
his  own  title,  until  evidence  is  adduced  that  he  holds  as  ten- 
ant of  the  others.55  For  this  purpose  the  fact  that  he  is 
holding  over  after  the  expiration  of  a  lease  from  his  co- 
tenants  is  not  enough.  The  fact  of  his  not  leaving  the  posses- 
sion does  not  authorize  the  inference  that  he  still  intends  to 
hold  under  the  lease;  the  presumption  is  that  he  holds  under 
his  own  title;  but  this  presumption  may  be  rebutted.56 

5.  Defendant's  Occupation. 

Evidence  of  an  agreement  to  take  the  premises  and  pay 
rent,  is  not  alone  enough.57  There  must  be  evidence  of 
beneficial  enjoyment,  or  of  constructive  possession  or  do- 
minion. It  is  not  necessary  to  prove  defendant  to  have  been 
hi  manual  occupation  during  the  time  for  which  recovery  is 
sought.  It  is  enough  to  show  that  the  power  to  occupy  and 

ance  of  the  rights  of  the  two  ten-  54  Everts  v.  Beach,  31  Mich.  136, 

ants  in  common  results,  and  it  will  s.  c.,  18  Am.  Rep.  169. 

not  be  necessary  for  one  of  them  55  Dresser  v.   Dresser,  40  Barb. 

in  suing  the  lessee  for  his  share  of  300. 

the  rent  to  join  the  other  as  a  party  **  McKay  v.  Mumford,  10  Wend. 

plaintiff.     Woolsey  v.   Lasher,  35  351,  Nelson  J. 

App.  Div.  108,  54  N.  Y.  Supp.  737.  57  Wood  v.  Wilcox,  1  Den.  37,  and 

51  Austin  v.  Ahearne,  61  N.  Y.  14.  cases  cited.     Otherwise  in  an  ac- 

52  Draper  v.  Crofts,  15  M.  &  W.  tion  on  the  contract.    Gilhooly  v. 
166.  Washington,  4  N.  Y.  217,  affi'g  3 

53  Rose.  X.  P.,  340,  citing  Glen  v.  Sandf.  330. 
Dungey.  4  Exch.  61. 


OCCUPATION  OF  REAL  PROPERTY 


901 


enjoy  was  given  by  the  landlord  to  the  tenant.58  Hence 
(agreement  having  been  proved)  evidence  of  delivery  and 
acceptance  of  the  key,  though  without  proof  of  continued 
actual  possession,  is  enough  to  sustain  a  finding; 59  and  the 
occupation  so  shown  will  be  presumed  to  have  continued  until 
the  contrary  appears.60  Payment  of  rent  by  defendant  to 
plaintiff  is  presumptive  evidence  of  occupation.61  Such  pay- 
ment during  the  occupancy  of  a  third  person  is  presumptive 
evidence  that  the  occupant  held  under  defendant,  which  is  the 
same  as  actual  occupancy  by  defendant.62  If  defendant  was 
an  under-tenant,  still  an  agreement  to  pay  rent  to  the  orig- 
inal lessor  may  be  inferred  from  continuous  payments  of  the 
previous  rents  to  him.63  The  receipt  by  the  defendant  of  the 
rents  and  profits,  or  an  attornment  from  an  under-tenant, 
is  evidence  of  use  and  occupation  by  the  defendant.64  Oc- 
cupancy by  a  third  person  who  was  put  into  possession  by 
the  defendant,  is  evidence  from  which  the  jury  may  infer 
occupancy  by  defendant.65  And  subleases  and  similar  writ- 


58  Hall  v.  Western  Trans.  Co.,  34 
N.  Y.  284,  and  cases  cited. 

59  Id.;  Little  p.  Martin,  3  Wend. 
220. 

60  Seaman  v.  Ward,  1  Hilt.  52,  55. 

61  Bishop  v.  Howard,  2  B.  &  C. 
100;  Harden  v.  Hesketh,  4  H.  &  N. 
175. 

The  receipt  of  rent  from  the  par- 
ties in  possession  raises  an  impli- 
cation as  to  the  existence  of  the 
relation  of  landlord  and  tenant  suf- 
ficiently to  support  a  summary  pro- 
ceeding for  dispossession.  Wein- 
haner  v.  Eastern  Brewing  Co., 
85  N.  Y.  Supp.  354. 

62  Moffatt  v.  Smith,  4  N.  Y.  126. 

63  McFarlan  v.  Watson,  3  N.  Y. 
286. 

Where  the  assignees  of  a  lease 
file  the  assignment  for  record  and 
for  years  thereafter  pay  rent  to  the 


original  landlord  it  is  ample  proof 
of  their  entry  under  the  lease. 
Landt  v.  McCullough,  218  HI. 
607,  75  N.  E.  Rep.  1069. 

Where  an  under-tenant  gets  his 
possession  not  directly  from  the 
tenant  but  through  an  intermediate 
party,  but  never  discloses  this 
fact  to  the  landlord  during  all  his 
dealings  with  the  landlord,  he  can- 
not take  advantage  of  the  discrep- 
ancies between  the  pleadings  and 
the  proofs  where  the  landlord  has 
alleged  that  the  under-tenant  got 
his  possession  from  the  tenant. 
Weide  v.  St.  Paul  Boom  Co.,  92 
Minn.  76,  99  N.  W.  Rep.  421. 

"Rose.  N.  P.  338,  citing  Neal 
v.  Swind,  2  C.  &  J.  377. 

65  Dimock  v.  Van  Bergen,  12 
Allen,  551. 

The  possession  of  the  sub-tenants 


902  ACTIONS   FOR   USE   AND 

ings,  made  by  defendant  to  third  persons,  are  competent 
evidence.66  But  there  does  not  appear  to  be  any  authority 
for  the  proposition  that  use  and  occupation  can,  in  the  ab- 
sence of  an  actual  demise,  be  maintained  on  a  constructive 
occupation  after  the  tenant  has  in  fact  ceased  to  occupy, 
and  has  offered  to  surrender  the  premises  to  the  landlord.67 
If  defendant  denies  privity  with  the  occupant,  and  alleges 
possession  by  the  occupant  under  a  stranger,  evidence  of 
employment  of  the  occupant  by  the  stranger,  is  competent, 
although  the  transaction  was  not  had  in  plaintiff's  possession. 
Defendant  may  show  that  the  occupation  attributed  to  him 
was  res  inter  olios  acto.68 

6.  Measure  of  Recovery. 

Where  there  has  been  a  lease  at  an  annual  rent  and  the 
tenant  held  over  after  its  expiration,  without  any  new  agree- 
ment as  to  the  rent,  the  law  implies  that  he  held  from  year 
to  year  and  at  the  original  rent.69  The  landlord  is  not  nec- 
essarily entitled  to  an  increased  rent,  because  the  lease  con- 
templated a  renewal  at  an  appraisement.70  But  if  the  former 
rent  was  not  upon  the  basis  of  an  annual  value,  as,  for  in- 
stance, where  it  was  for  a  fraction  of  a  year  only,71  or  where 
it  is  only  a  ground  rent,  the  value  of  buildings  being  other- 
wise stipulated  for,72  evidence  of  actual  value  can  be  re- 
is  the  possession  of  the  tenant,  70  Holsman  v,  Abrams,  2  Duer, 
and  if  the  sub-tenants  remain  in  435. 

possession  after  the  expiration  of  "  Evertson  v.  Sawyer,  2  Wend, 
the  tenant's  term,  the  tenant  is  507. 

liable  for  holding  over.  Ventura  Where  the  rent  of  certain  prem- 
Hotel  Co.  v.  Pabst  Brewing  Co.,  ises  is  in  dispute,  it  is  error  to  ad- 
33  Ky.  Law  Rep.  149,  109  S.  W.  mit  testimony  as  to  the  amount 
Rep.  354.  of  rent  received  by  the  plaintiff 

M  Cornwall  v.  Hoyt,  7  Conn.  420,  for  the  adjoining  premises,  as  it  can 
428.  have  no  bearing  whatever  on  the 

67  Rose.  N.  P.  337.  question  of  the  amount  of  rent  to 

68  Lewis    v.    Havens,    40    Conn.      be  paid  by  the  defendant.     Ste- 
361.  vens  v.  Beardsley,  122  Mich.  671, 

"Abeel   v.    Radcliff,    15   Johns.      81  X.  W.  Rep.  921. 
505.  "  Abeel  v.  Radcliff  (above) . 


OCCUPATION    OF   REAL   PROPERTY  903 

ceiled.  If  during  occupancy  after  expiration  of  a  lease,  the 
title  is  in  dispute,  and  there  is  no  recognized  landlord,  the 
rate  of  rent  fixed  by  the  lease  is  not  conclusive  on  either 
party.73  Where  the  agreement  of  tenancy  (even  though 
proved  merely  by  the  tenant's  tacit  assent  to  terms  stated 
by  the  lessor),  fixed  the  rent  for  the  period  hi  question,  evi- 
dence of  actual  value  is  irrelevant.74  If  defendant  occupied 
under  a  lease  fixing  the  rent,  the  fact  that  the  lease  was  not 
valid  as  against  him,  for  example,  by  reason  of  want  of 
sealed  authority  in  the  agent  who  executed  it,  does  not  pre- 
vent its  use  against  him  as  furnishing  an  admission  establish- 
ing the  measure  of  recovery.75  If  one  holding  over  under  a 
prior  lease  retains  only  a  part  of  the  premises,  or  if  part  of 
the  premises  have  been  recovered  from  the  tenant  by  title 
paramount,  plaintiff  may  recover  a  reasonable  compensa- 
tion for  the  part  defendant  enjoyed.76 

7.  Admissions  and  Declarations. 

Evidence  that  a  bill  for  the  rent  was  presented  to  defend- 
ant, and  that  he  promised  to  pay  it,  is,  hi  connection  with 
very  slight  evidence  of  occupation,  sufficient  to  sustain  a 

73  Van  Brunt  v.  Pope,  6  Abb.  Pr.  prior  years  is  immaterial  and  ir- 

N.  S.  217.  relevent.     Simpson   v.   East,    124 

Where    a    tenant    holds    over  Ala.  293,  27  So.  Rep.  436. 

while  negotiations  with  his  land-  Where    the   parties   assert   and 

lord  for  a  new  lease  are  pending,  rely  upon  an  express  contract  the 

and  a  proposed  lease  is  drawn  up  question  of  reasonable  rental  value 

but  not  executed,  such  proposed  is  not  an  issue  and  testimony  as 

lease  is  admissible  in  evidence  to  to  it  should  be  excluded.    Gilmore 

aid     the     jury     in     determining  v.  H.  W.  Baker  Co.,  12  Wash.  468, 

whether  it  was  acted  upon  and  ac-  41  Pac.  Rep.  124. 

cepted    and    became    a    contract.  75  Morrell   v.   Cawley,    17  Abb. 

Pusheck  v.  Frances  E.  Willard,  etc.,  Pr.  76. 

Assoc.,  94  111.  App.  192.  76  Christopher  v:  Austin,  11  N.  Y. 

7<  Despard  -r.  Walbridge,  15  N.  Y.  216,  affi'g  2  E.  D.  Smith,  203.    As 

374.  to  a  mere  trespass  by  the  landlord, 

When  the  amount  of  the  rent  see  Lounsbery  v.  Snyder,  31  N.  Y. 

has  been  agreed  upon,  evidence  as  514. 
to  what  the  premises  rented  for  in 


904 


ACTIONS   FOR   USE   AND 


verdict."  If  a  valid  agreement  of  hiring  be  proven,  defend- 
ant's general  admissions  of  occupation  may  be  referred  to 
that  agreement;  but  if  it  be  shown  to  be  void,  the  burden  is 
on  the  tenant  of  proving  that  the  occupation  referred  to  was 
under  that  agreement,  if  he  relies  on  it  to  defeat  the  ac- 
tion.78 Acts  and  declarations  characterizing  possession  may 
be  proven ; 79  but  the  meaning  of  the  terms  of  a  written  lease 


"  Treadwell  t.  Bruder,  3  E.  D. 
Smith,  596. 

78Buell  v.  Cook,  5  Conn.  206. 
Otherwise  if  valid. 

79  Corbett  ».  Costello,  8  La.  Ann. 
427. 

Claim,  of  ownership  of  one  in 
possession  of  lands  is  an  ingredient 
of  adverse  possession  and  it  may 
be  shown  by  the  declarations  of  the 
party  while  in  possession.  Henry 
r.  Brown,  143  Ala.  446,  39  So.  Rep. 
325. 

Declarations  of  one  in  posses- 
sion, explanatory  of  his  posses- 
sion and  making  claim,  are  ad- 
missible evidence  while  he  is  in 
possession,  to  show  that  it  is  under 
claim  of  ownership,  but  not  to 
show  title.  Parkersbury  Indus- 
trial Co.  v.  Schultz,  43  W.  Va.  470, 
27  S.  E.  Rep.  255. 

Particular  acts  of  dominion  over 
the  property  and  declarations  of 
the  possessor  while  in  possession 
as  to  his  claim  to  the  property, 
though  not  accompanying  an  act 
of  possession,  are  admissible,  be- 
ing of  the  res  gestce  of  the  fact  in- 
volved. Knight  v.  Knight,  178  111. 
553,  53  X.  E.  Rep.  306. 

Since  a  person  who  is  in  pos- 
session of  premises  would  ordina- 
rily be  presumed  to  be  the  owner, 
his  statements,  while  he  is  in  pos- 


session, that  he  is  acting  as  agent 
for  another,  are  in  disparagement 
of  his  own  title,  and  therefore 
admissible.  Murphy  v.  Dafoe,  18 
S.  D.  42,  99  N.  W.  Rep.  86. 

But  declaration  of  a  deceased 
owner  characterizing  the  posses- 
sion cannot  be  received  in  evidence 
to  prove  merely  the  fact  of  the 
possession.  That  cannot  be  proven 
merely  by  the  declaration.  High 
r.  Pancake,  42  W.  Va.  602,  26  S.  E. 
Rep.  536. 

The  declarations  of  one  in  pos- 
session of  property  explanatory  of 
his  possession  are  admissible  in 
evidence,  because  they  explain 
the  character  of  his  possession; 
but  his  declarations  in  regard  to 
the  contract  by  which  he  came  into 
possession  cannot  be  received  in  his 
favor. 

Letters  written  by  a  tenant  of  a 
farm  who  did  not  reside  on  the 
farm,  to  his  managing  agent  on 
the  farm  directing  him  as  to  the 
disposition  of  the  personal  prop- 
erty there  and  as  to  the  farming 
operations  to  be  carried  on  there, 
are  more  than  mere  declarations. 
They  are  acts  of  the  tenant  tend- 
ing to  show  possession  and  control 
of  the  farm  and  the  personal  prop- 
erty there  and  are  admissible  in  his 
favor.  Bagnell  v.  Sweet  Springs 


OCCUPATION    OF    REAL    PROPERTY 


905 


cannot  be  varied  by  the  declarations  of  the  parties  as  to 
their  understanding  of  them.80 


Chemical  Bk.,  76  Mo.  App. 
121. 

Sayings  of  a  person  in  possession 
of  real  estate  or  interest  therein 
ought  not  to  be  admitted  in  evi- 
dence against  another,  unless  the 
latter  claims  through  or  under  him 
or  stands  in  privity  with  him,  the 
declarations  not  being  offered  to 
show  adverse  possession  on  the 
part  of  the  declarant.  Whelchel 
v.  Gainesville,  etc.,  Ry.  Co.,  116 
Ga.  431,428.  E.  Rep.  776. 

^Bigelow  v.  Collamore,  5  Cush. 
226. 

Evidence  tending  to  vary  the 
terms  of  a  written  lease  is  inadmis- 
sible. Smith  v.  McEvoy,  98  111. 
App.  330. 

It  is  improper  to  admit  parol 
evidence  to  vary  the  terms  of  a 
lease  under  seal.  Friedman  P. 
Schwabacher,  64  111.  App.  422. 

Parol  evidence  tending  to  show 
the  original  intention  of  the  parties 
to  a  written  lease  is  not  admissible. 
The  court  must  construe  the  instru- 
ment as  it  finds  it.  Soule  v. 
Palmer,  49  N.  Y.  Supp.  475. 

Parol  testimony  that  it  was  the 
intention  of  both  parties  to  a  writ- 
ten lease  to  include  the  word  "cel- 
lar" in  the  description  of  the  prem- 
ises is  inadmissible  in  a  court 
which  has  no  equity  jurisdiction. 
Kraus  v.  Smolen,  46  Misc.  Rep. 
463,  92  N.  Y.  Supp.  329. 

A  tenant,  after  having  executed 
a  written  lease,  cannot  testify  that 
the  tenancy  was  not  a  tenancy  for 
one  year,  but  from  month  to 


month,  as  it  would  be  varying  a 
written  instrument  by  parol.  Equi- 
table Life  Assur.  Soc.  v.  Schum,  40 
Misc.  Rep.  657, 83  N.  Y.  Supp.  161. 

The  terms  of  a  written  lease  as  to 
the  amount  of  rent  to  be  paid  can- 
not be  varied  by  showing  that  the 
tenant  bought  furniture  for  the 
premises  as  a  part  of  the  considera- 
tion for  the  lease.  McMullen  v. 
Moffitt,  68  111.  App.  160. 

Where  the  lease  does  not  specify 
the  amount  of  rent  to  be  paid,  parol 
evidence  of  the  intention  and  pur- 
pose for  which  the  tenant  rented 
the  grounds  is  inadmissible.  Cox 
v.  O'Neal,  142  Ala.  314,  37  So.  Rep. 
674. 

Where  the  terms  of  a  lease  are 
not  ambiguous  and  uncertain  in 
the  sense  wlu'ch  permits  the  ex- 
planation thereof  by  parol,  one 
of  the  parties  will  not  be  permitted 
to  testify  that  it  was  agreed  and 
understood,  when  the  contract 
was  entered  into,  that  the  option 
to  buy  should  be  unconditional. 
De  Vitt  v.  Kaufman  County,  27 
Tex.  Civ.  App.  332,  66  S.  W.  Rep. 
224. 

One  of  the  parties  to  a  written 
lease  will  not  be  permitted  to 
testify  to  a  previous  parol  under- 
standing between  the  parties  as  to 
retaining  a  portion  of  the  premises. 
Greenhill  r.  Hunton  (Tex.),  69 
S.  W.  Rep.  440. 

When  a  party  voluntarily  and 
knowingly  executes  a  lease  under 
seal,  even  though  it  be  by  the 
fraudulent  contrivance  of  others,  it 


906 


ACTIONS  FOE  USE  OF  REAL  PROPERTY 


can  only  be  impeached  and  set 
aside,  and  parol  evidence  be  re- 
ceived for  that  purpose,  in  a  court 
of  equity.  Resser  v.  Corwin,  72 
111.  App.  625. 

Where  a  lease,  uncertain  in  its 
terms,  has  been  acted  on  and  partly 
performed,  the  court,  in  order  to 
relieve  the  objection  of  uncertainty, 


will,  for  the  construction  of  the 
instrument,  have  regard  in  some 
cases  to  the  user  and  course  of  deal- 
ings of  the  parties,  to  the  surround- 
ing circumstances  and  to  their 
conduct  between  the  making  of  the 
lease  and  the  commencement  of  the 
suit.  Naughton  ».  Elliott,  68  N. 
J.  Eq.  259,  59  Atl.  Rep.  869. 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


A     nnn o '  '"'"'''''''''lli 


